Chen (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Direct Entry stream. The applicant's prospective employer, Grand City International Pty Ltd, had lodged a nomination application for the occupation of Managing Director in respect of the applicant. The Tribunal was required to determine whether the applicant met the requirements of clause 186.233 of the Migration Regulations 1994, which pertains to the nomination of a position for the visa.

The primary legal issue before the Tribunal was whether the nominated position met the criteria set out in clause 186.233. This clause requires, among other things, that the position be the subject of an approved nomination, that the nominator is the prospective employer, that the nomination has not been withdrawn, that there is no adverse information known to Immigration concerning the nominator or associated persons (or such information is reasonable to disregard), that the position remains available, and that the visa application was made within six months of the nomination approval.

The Tribunal found that on 2 September 2020, it had set aside a delegate's decision of 24 July 2018 to refuse the nomination application and substituted its own decision to approve the nomination. The Tribunal was satisfied that the evidence established all the necessary elements of clause 186.233, including that the nominator was the prospective employer, the nomination was approved and not withdrawn, there was no adverse information or it was reasonable to disregard it, the position remained available, and the visa application was made within the prescribed timeframe.

Consequently, the Tribunal remitted the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration. The Tribunal directed that the first named applicant met the criteria for a Subclass 186 visa under clause 186.233. Furthermore, the Tribunal considered that the applications of the second and third named applicants, as family unit members, should be reconsidered in light of the first applicant satisfying the primary criteria.