Balestrat (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. The applicant sought review of the refusal of their associated position nomination. The Administrative Appeals Tribunal, constituted by Terrence Baxter, considered the combined review of the nomination and visa applications.

The primary legal issue before the Tribunal was whether the applicant met the criteria for an approved nomination under clause 186.233 of Schedule 2 to the Migration Regulations 1994. This clause requires, among other things, that the nominated position be the subject of an approved nomination, that the nominator be the prospective employer, that the nomination has not been withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available, and that the visa application was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 approval.

The Tribunal found that while the Department of Home Affairs had initially refused the nomination application, this decision was subsequently set aside by the Tribunal on 4 December 2023, and a decision to approve the nomination was substituted. Consequently, the Tribunal concluded that criterion 186.233(3) of the Regulations was met. Given this finding, the Tribunal determined that the appropriate course of action was to remit the visa application to the Minister for reconsideration of the remaining visa criteria.