Cao (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding a refusal to approve a nomination for a Subclass 186 Employer Nomination (Permanent) (Class EN) visa, Labour Agreement stream. The primary applicant, Mr. Hong Cao, sought to have his visa application reconsidered following the subsequent approval of his employer's nomination.

The central legal issue before the Tribunal was whether the applicant met the criteria set out in clause 186.242 of Schedule 2 to the Migration Regulations 1994. This clause outlines various requirements for a nominated position under the Labour Agreement stream, including that the position be nominated in accordance with a labour agreement, that the nomination has been approved and not withdrawn, that there is no adverse information about the employer or it is reasonable to disregard such information, that the position remains available, and that the terms and conditions of employment are no less favourable than those offered to Australian workers.

The Tribunal found that the nominated position of Skilled Meat Worker was identified, and Mr. Cao was identified in relation to that position. Crucially, the Tribunal noted that the employer's nomination, initially refused because no labour agreement was in effect, was subsequently approved on 20 September 2023, after a labour agreement had been executed. The Tribunal was satisfied that all subclauses of clause 186.242 were met, including that the requirements of the labour agreement had been met, adverse information about the employer could be disregarded, the position was still available, and the terms and conditions of employment were favourable. The Tribunal also found that the secondary applicant, as a member of Mr. Cao's family unit, met the relevant criteria.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the primary and secondary applicants had met the specified criteria for the Subclass 186 visa.