Browne (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Direct Entry stream, lodged by the applicant and a related nomination application by Gyro Australia Pty Ltd. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for the visa, specifically clause 186.233, which pertains to the nominated position.

The primary legal issue before the Tribunal was whether the nominated position met the requirements of clause 186.233(1)(a) of the Migration Regulations 1994. This clause stipulated that the position must be nominated in an application seeking to meet the requirements of subparagraph 5.19(4)(h)(i). The Tribunal had previously set aside the Department's decision not to approve the nomination, finding that it met the requirements of regulation 5.19(4)(h)(ii). However, the Tribunal noted that regulation 5.19(4)(h)(ii) did not fall within the criteria specified in clause 186.233(1)(a).

The Tribunal reasoned that despite the nominator and applicant's assertion that the nomination was intended for the Subclass 187 visa (Regional Sponsored Migration Scheme), the application before the Tribunal was for a Subclass 186 visa. As the Tribunal has no power to change the visa subclass applied for, it was bound to assess the application against the requirements of clause 186.233 for the Subclass 186 visa. Because the nomination, while approved under regulation 5.19(4)(h)(ii), did not satisfy the specific requirements of clause 186.233(1)(a), the Tribunal concluded that the applicant did not meet the criteria for the visa. Consequently, the Tribunal affirmed the decision not to grant the applicant the visa.