1510863 (Migration)

The Administrative Appeals Tribunal considered an application for review of a decision by the Department of Immigration to refuse to approve a nominated position for a Subclass 186 (Employer Nomination Scheme) visa. The applicant's nominating employer, Aiboshi Group Pty Ltd, had applied for approval of a Cook position, which was initially refused by the Department. The Tribunal was asked to determine whether the relevant nomination had been approved and met the criteria under clause 186.223 of the Regulations.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause requires, among other things, that the nominated position be approved, not withdrawn, still available to the applicant, and that the visa application be made within six months of the nomination's approval. It also necessitates that the applicant be identified as the relevant Subclass 457 visa holder in the nomination and that there be no adverse information known to the Department about the nominator or associated persons, or that such information can be disregarded.

The Tribunal found that the position was the same as that in the nomination application, the applicant was identified as the Subclass 457 visa holder, and the position remained available. Crucially, the Tribunal noted that it had previously set aside the Department's refusal and substituted a decision to approve the nomination. Based on the evidence, the Tribunal was satisfied that the nomination had been approved, not withdrawn, the position was still available, the visa application was lodged within the time limit, and there was no adverse information. Consequently, the Tribunal concluded that clause 186.223 was met.

The Tribunal remitted the Employer Nomination (Permanent) (Class EN) visa applications for reconsideration by the Minister, with a direction that the first named applicant meets the criteria under clause 186.223 of the Regulations.