Bendasova (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a decision to refuse to approve a nomination for a Subclass 186 Employer Nomination Scheme visa, Direct Entry stream. The applicant for review was the nominating employer, AI3D Pty Ltd, and the visa applicants were the prospective employees. The Tribunal was required to determine whether the nomination met the requirements of clause 186.233 of Schedule 2 to the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the nomination satisfied all the criteria stipulated in clause 186.233. This included whether the nominated position was the subject of an approved nomination, whether the nominator was the prospective employer, whether the nomination had been approved and not withdrawn, whether there was any adverse information known to the Department concerning the nominator or their associates, whether the position remained available to the applicant, and whether the visa application was made within six months of the nomination approval.

The Tribunal found that the Managing Director of AI3D Pty Ltd, who made the nomination, was also the person who would employ the visa applicant. The Tribunal noted that the Department had initially refused to approve the nomination, but on review, the Tribunal had set aside that decision and substituted a decision to approve the nomination. It was established that there was no adverse information known to Immigration regarding the nominator or their associates, and the employment contract demonstrated that the position was still available. Furthermore, the visa application was made within the prescribed six-month period after the nomination approval. Consequently, the Tribunal concluded that clause 186.233 was met.

The Tribunal remitted the primary visa applicant’s visa application to the Minister for reconsideration of the remaining criteria. The Tribunal also remitted the secondary visa applicant’s application, noting that if the primary applicant’s visa were approved, the secondary applicant would satisfy the relevant criteria. The Tribunal directed that the first named applicant met criteria 186.233(3) and 186.233, and the secondary applicant met criterion 186.311.