ZHAO (Migration)

This matter concerned an application for review of a decision not to grant Employer Nomination (Permanent) (Class EN) visas, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream. The applicant, a citizen of the People's Republic of China, sought review of the decision affirming the refusal of her visa application, which was sponsored by Southern Cross Travel Pty Limited for the occupation of marketing specialist. The Tribunal, presided over by Alan McMurran, considered the claims and evidence presented by the applicant and her representative.

The central legal issue before the Tribunal was whether the applicant was the subject of an approved nomination by the Minister for the occupation of marketing specialist in favour of the nominator, Southern Cross Travel Pty Limited. This required the Tribunal to determine if the requirements of clause 186.223 of the Migration Regulations 1994 were met, specifically concerning the approval of the nomination, its subsequent withdrawal, the availability of the position, and the timing of the visa application relative to the nomination approval.

The Tribunal reasoned that a prerequisite for the approval of a Subclass 186 visa under the employer nomination scheme is the Minister's approval of the nomination. It noted that there is no discretion for the Tribunal to waive this requirement, and if the nomination is not successful, the visa application must fail. The applicant's representative conceded that if the nomination review was unsuccessful, the visa application would also fail. The Tribunal found that the applicant was the nominee for the position of marketing specialist, but the success of the visa application was contingent on the approval of the sponsor's nomination.

Ultimately, the Tribunal affirmed the decision not to grant the visas. As the primary applicant did not hold a Subclass 186 visa, the Tribunal found that the secondary applicants, who were family members, did not satisfy regulation 186.311 and were therefore not eligible for the visas.