ZHENG (Migration)

This matter concerned an appeal by the applicant, ZHENG, against a decision of the Department of Immigration and Border Protection to refuse her an Employer Nomination (Permanent) (Class EN) visa, subclass 186. The applicant sought to satisfy the criteria for the Direct Entry stream of this visa subclass. The Tribunal was required to review the Department's decision.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.233 of Schedule 2 of the Migration Regulations 1994. This clause mandates that for the Direct Entry stream, the nominated position must be the subject of an approved or pending application for nomination. The Tribunal also considered whether the applicant met the secondary criteria under clause 186.311, which relates to being a member of a family unit of a person who holds a subclass 186 visa.

The Tribunal's reasoning focused on the applicant's failure to respond to a notice issued under section 359A of the Migration Act 1958. This notice informed the applicant of information that the Tribunal intended to rely upon, specifically that the nominating employer's application to nominate the position of Sales and Marketing Manager had been rejected by a delegate of the Minister on 15 September 2016, and that this rejection decision had been affirmed by the Tribunal on 18 May 2018. The applicant was given a period to provide comments or a response, but failed to do so and did not request an extension of time. Consequently, the Tribunal was precluded from offering the applicant a hearing and proceeded to make a decision under section 359C(2) of the Act. The Tribunal found that as the nominating employer's application was not approved or pending, the applicant did not meet the requirement of clause 186.233. As this primary criterion was not met, the Tribunal also found that the applicant did not meet the secondary criteria under clause 186.311.

The Tribunal affirmed the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa, subclass 186.