BAE (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal (AAT) regarding an Employer Nomination (Permanent) visa (Subclass 186) under the direct entry stream for a Minister of Religion. The applicants sought review after their visa applications were refused because the employer's nomination for the position was initially refused by the Department of Immigration. The nominating employer was the Sydney Manmin Holiness Church.

The primary legal issue before the Tribunal was whether the requirements of clause 186.233 of Schedule 2 to the Migration Regulations 1994 were met. This clause outlines several conditions for a valid nomination in the direct entry stream, including that the position must be the subject of an approved nomination, the nominator must be the intended employer, the nomination must not have been withdrawn, there must be no adverse information known to the Department about the nominator or associated persons (or such information must be disregarded), the position must remain available to the applicant, and the visa application must have been made within six months of the nomination's approval.

The Tribunal reasoned that while the Department had initially refused the nomination, the employer had successfully sought review of that decision. On 8 February 2018, the Tribunal itself set aside the delegate's refusal and substituted a decision approving the nomination. Based on this subsequent approval, the Tribunal was satisfied that the nomination was approved and had not been withdrawn. Furthermore, the Tribunal found no adverse information concerning the nominator or associated persons, that the position remained available, and that the visa application was made concurrently with the nomination, thus satisfying the six-month timeframe. Consequently, the Tribunal concluded that clause 186.233 had been met.

The Tribunal remitted the visa applications for reconsideration by the Minister, directing that the first applicant met the criteria under clause 186.233 for a Subclass 186 visa.