Adhikari (Migration)

This matter concerned an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), under the direct entry stream. The applicant sought review of a decision to refuse their visa application. The Tribunal was required to determine whether the nomination for the position had been refused, and if not, whether the applicant met the relevant criteria for the visa.

The central legal issue was the interpretation and application of clause 186.233 of Schedule 2 to the Migration Regulations, which sets out requirements for the nominated position. This clause mandates that the position must be the subject of an approved nomination, that the employer must be the nominator, that the nomination must not have been withdrawn, and that there must be no adverse information known to Immigration, or such information must be disregarded. Additionally, the position must remain available to the applicant, and the visa application must be lodged within six months of the nomination's approval.

The Tribunal found that the applicant met the requirements of clause 186.233. It relied on its previous decision of 21 January 2021, which set aside the Department's refusal and substituted a decision approving the appointment for the position of Baker. Based on the evidence presented, the Tribunal was satisfied that the approved position was the same as that nominated and declared in the visa application. Furthermore, the Tribunal found that the employer was the nominator and that the visa applicant now met the requirements of clause 186.233(3) in light of the Tribunal's prior approval of the appointment.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining criteria for the Subclass 186 visa. The Tribunal directed that the first applicant met the criteria specified in clause 186.233.