ZHAO (Migration)

The Administrative Appeals Tribunal considered a review of a decision to refuse an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Direct Entry stream. The applicant sought review of the refusal of their visa application, which was predicated on the refusal of an associated nomination application.

The primary legal issue before the Tribunal was whether the applicant's nomination application had been approved, as required by the relevant migration regulations for the Subclass 186 visa. Specifically, the Tribunal had to determine if the nominated position met the criteria under clause 186.233 of the Migration Regulations 1994, which includes requirements for an approved nomination, the employer being the nominator, and the position being available to the applicant. The Tribunal also considered whether the applicant met the criteria for other streams within Subclass 186, namely the Temporary Residence Transition Stream and the Agreement Stream, as well as secondary criteria.

The Tribunal reasoned that the nomination application lodged by Plantet Tel Group P/L was refused by a delegate of the Minister on 10 August 2017. Despite an invitation to comment, departmental records indicated no response was received within the specified timeframe. Consequently, the delegate was not satisfied that the applicant met clause 186.233(3) because the nomination application had been refused. Further assessment revealed that the nomination did not meet the requirements for the Temporary Residence Transition Stream (clause 186.223) or the Agreement Stream (clause 186.242), as it only sought to meet the requirements of r.5.19(4). The Tribunal also found that the secondary criteria under clause 186.311 were not satisfied.

The Tribunal affirmed the decision to refuse the Employer Nomination Scheme (Subclass 186) visas.