1508229 (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically a Subclass 186 (Employer Nomination Scheme) visa. The applicant's employer, Australian International Tianlutang Pty Ltd, had lodged a nomination application for the applicant for the position of Café or Restaurant Manager, which was initially refused. However, a subsequent nomination application for the same position with the same employer was lodged and approved. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria under clause 186.223 of Schedule 2 to the Regulations, which pertains to the approval of a nominated position.

The primary legal issue before the Tribunal was whether clause 186.223 of the Regulations could be satisfied by a new, approved nomination for the same position with the same employer, even if an earlier nomination had been refused. This clause requires, among other things, that the nominated position be the subject of an approved nomination in force, that the applicant was identified in the nomination, that the nomination has not been withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available, and that the visa application was made within six months of the nomination's approval.

The Tribunal reasoned that clause 186.223 does not expressly mandate that the nomination relied upon must be the same as any previously refused nomination, provided it is for the same position with the same employer. Applying this interpretation, the Tribunal found that the approved nomination dated 22 February 2016 met all the stipulated requirements of clause 186.223. Specifically, the Tribunal was satisfied that the nomination was approved and not withdrawn, that no adverse information was found, that the position remained available, and that the visa application was lodged within the six-month timeframe.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant meets the criteria under clause 186.223 of Schedule 2 to the Regulations. The Minister is to consider the remaining criteria for the Subclass 186 visa.