BADAL (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 (Employer Nomination Scheme) Direct Entry stream, for the position of Corporate General Manager. The primary dispute revolved around whether the applicant's nomination for the position had been approved, a prerequisite for visa eligibility. The decision was made by Cathrine Burnett-Wake, a Member of the Tribunal.

The central legal issue before the Tribunal was to determine if the applicant met the requirements of clause 186.233 of Schedule 2 to the relevant regulations, which pertains to the approval of a nomination for the Direct Entry stream. This clause mandates that the nominated position must be the subject of an approved nomination, that the nominating employer must be the prospective employer, that the nomination must not have been withdrawn, that there must be no adverse information known to Immigration or that such information is reasonable to disregard, that the position remains available, and that the visa application was lodged within six months of the nomination's approval.

The Tribunal found that the applicant's nominating employer, Euro Foods Group Australia Pty Ltd, had initially had its nomination for the Corporate General Manager position refused by the Department. However, following a review application, the Tribunal had previously set aside the Department's decision and substituted a decision to approve the nomination on 22 June 2021. Consequently, the Tribunal concluded that the applicant met the requirement of clause 186.233(3) as the nomination had been approved.

Given this finding, the Tribunal remitted the visa application for reconsideration by the Minister. This reconsideration was to include the remaining criteria for the primary applicant's visa and, importantly, the applications of the second named visa applicants, who were family unit members of the primary applicant. The Tribunal directed that the first named applicant met the criteria under clause 186.233(3).