Bittencourt Silva (Migration)

This matter concerned an application for review by Mr Bittencourt Silva of a decision to refuse to approve a nomination for a Subclass 186 (Employer Nomination Scheme) visa. The Administrative Appeals Tribunal, constituted by Kate Timbs, was required to consider whether Mr Bittencourt Silva satisfied the criteria under clause 186.223 of Schedule 2 to the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the nomination for Mr Bittencourt Silva's Subclass 186 visa had been validly approved, despite an initial refusal by a delegate. The Tribunal had to determine if the criteria outlined in clause 186.223, including the approval of the nomination, the non-withdrawal of the nomination, the availability of the position, and the timing of the visa application relative to the nomination approval, were met.

The Tribunal reasoned that it had the power to set aside the delegate's refusal and substitute a decision to approve the nomination. In doing so, the Tribunal found that the nominating company had not withdrawn the nomination, the position remained available to Mr Bittencourt Silva, and there was no relevant adverse information known to the Department of Home Affairs. Crucially, the Tribunal found that Mr Bittencourt Silva had applied for the visa before the nomination was approved. Based on these findings, the Tribunal concluded that Mr Bittencourt Silva satisfied all the criteria under clause 186.223. The Tribunal remitted the application for the Employer Nomination (Permanent) (Class EN) visa for reconsideration by the Department, with a direction that Mr Bittencourt Silva meets the criteria in clause 186.223.