Basnayake (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa, Temporary Residence Transition stream, by an applicant whose nominating employer was CEBRAN Pty Ltd. The applicant sought review of a decision by the Administrative Appeals Tribunal (AAT) concerning the approval of the nominated position. The decision was made by Member Nicola Findson.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994, specifically concerning the approval of the nominated position. This clause requires that the nominated position be approved by the Minister, not subsequently withdrawn, that there be no adverse information known to Immigration about the nominator or associated persons (or that such information can be disregarded), that the position remains available to the applicant, and that the visa application is made within six months of the nomination approval.

The Tribunal found that the applicant's nominating employer, CEBRAN Pty Ltd, had initially applied for approval of the Vehicle Painter position, which the Department refused. CEBRAN Pty Ltd then applied to the Tribunal for review of this refusal. On 11 November 2019, the Tribunal set aside the Department's decision and substituted a decision to approve the nomination. Consequently, the Tribunal concluded that the applicant met the requirement of clause 186.223(2) as the relevant nomination had been approved.

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. The Tribunal directed that the applicant met clause 186.223(2) of Schedule 2 to the Regulations.