CHEN (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream, for a position as an Accountant (General). The applicant, Chen, sought review of a decision concerning their visa application. The Tribunal, constituted by Member Alan McMurran, was tasked with determining whether the applicant was the subject of an approved nomination application that related to the nominated position.

The primary legal issue before the Tribunal was whether the applicant met the criteria set out in clause 186.223 of Schedule 2 to the Migration Regulations 1994. Specifically, the Tribunal had to consider whether the nominated position was approved, had not been withdrawn, whether there was any adverse information concerning the nominator or associated persons, if the position remained available to the applicant, and if the visa application was lodged within six months of the nomination approval.

The Tribunal reasoned that the evidence before it, including information from the Tribunal's file and the Department's files, established that the nomination application was approved on 16 April 2020 and had not been withdrawn. It was also satisfied that no adverse information was known to the Department regarding the nominator or associated persons, that the Accountant (General) position remained available to the applicant on a full-time basis with the nominator, and that the visa application was made within the six-month timeframe following the nomination approval. Consequently, the Tribunal found that clause 186.223 was met.

Given these findings, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant met the criteria under clause 186.223(2) and clause 186.223 of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the visa.