Zhou (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Temporary Residence Transition stream. The primary applicant was an accountant who had an approved nomination. However, the applicant did not respond to an invitation issued under section 359A of the Migration Act 1958 (Cth), and the Tribunal declined to grant an indefinite adjournment of the decision-making process. The AAT affirmed the decision not to grant the visa.

The central legal issue before the Tribunal was whether the applicants met the criteria for the grant of a Subclass 186 visa, particularly in light of the primary applicant's failure to respond to the section 359A invitation and the implications for secondary applicants. The Tribunal also considered the requirements of clause 186.311 of Schedule 2 to the Migration Regulations 1994 (Cth) concerning family unit members.

The Tribunal reasoned that as the primary applicant had not met the requirements for the grant of a Subclass 186 visa and was not the holder of such a visa, the secondary applicants (the second, third, and fourth named applicants) could not satisfy the requirements of clause 186.311. This clause mandates that a secondary applicant must be a member of the family unit of a primary applicant who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria. Consequently, the Tribunal found that the applicants did not satisfy the necessary criteria for the visa.