CHEN (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), brought by the applicant, CHEN. The Administrative Appeals Tribunal (AAT) was required to review the decision of the Department of Immigration to refuse the visa application.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.233(3) of Schedule 2 to the Migration Regulations 1994, which pertains to the approval of a nominated position. This clause, as applicable, required that the nominated position be the subject of an approved nomination application, that the nominator be the prospective employer, that the nomination had been approved and not withdrawn, that there was no adverse information known to the Department about the nominator or associated persons, that the position remained available, and that the visa application was made within six months of the nomination approval.

The Tribunal noted that the Department had initially refused the nomination approval applications, leading to the refusal of the visa. However, subsequent to the Department's decisions, the nomination approval applications were approved by the Tribunal itself. Given this development, the Tribunal was satisfied that the applicant met clause 186.233(3). Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, directing that the applicant had met the criteria under clause 186.233(3).