ZHU (Migration)

This matter concerned an appeal by the applicant, Ms. Zhu, and her family members against the refusal of their Employer Nomination (Permanent) (Class EN) visas, specifically under the Subclass 186 Employer Nomination Scheme, Temporary Residence Transition stream. The core of the dispute revolved around the validity of the nomination made by Ms. Zhu's employer, Fook Yuen (Australia) Food and Beverage Pty Ltd, which had been deregistered. The case was heard by Penelope Hunter of the Migration and Refugee Division of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the nomination associated with Ms. Zhu's visa application had been approved, as required by clause 186.223 of Schedule 2 to the Migration Regulations. This clause mandates that the nominated position must have been approved, not subsequently withdrawn, and that there must be no adverse information known to the Department about the nominator, or any such information must be reasonable to disregard. Additionally, the position must remain available to the applicant, and the visa application must be made within six months of the nomination's approval.

The Tribunal reasoned that the deregistration of the nominating employer, Fook Yuen (Australia) Food and Beverage Pty Ltd, on 19 July 2010, meant that the nomination could not have been approved in accordance with the regulations. The Tribunal had notified the applicant of this information and its potential impact on her ability to meet clause 186.223(2). While the applicant acknowledged the deregistration and argued it was due to circumstances beyond her control, and presented personal circumstances and future intentions, the Tribunal found these arguments did not overcome the fundamental requirement of an approved nomination by a registered entity. Consequently, as Ms. Zhu did not meet the primary visa requirements, her family members, who applied as part of her unit, also failed to meet the criteria.

The Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to Ms. Zhu and her family members.