Chin (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) Direct Entry stream. The dispute arose when the employer's nomination was initially refused by a delegate of the Minister for the Department of Home Affairs. The employer subsequently applied for a review of this refusal with the Tribunal. The Tribunal, presided over by Jade Murphy, was tasked with determining whether the position nominated for the visa applicant was the subject of an approved nomination that identified the applicant.

The primary legal issue before the Tribunal was to ascertain whether clause 186.233 of Schedule 2 to the Migration Regulations 1994 had been met. This clause requires, among other things, that the nominated position be the subject of an approved nomination that identifies the visa applicant, that the nominator is the prospective employer, that the nomination has not been withdrawn, that there is no adverse information known to the Department about the nominator or associated persons (or such information is reasonable to disregard), that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's approval.

The Tribunal found that the initial refusal of the nomination by the Department was flawed. On review, the Tribunal set aside that refusal and substituted a decision approving the nomination. Having determined that the nomination was approved and met the requirements of clause 186.233, including identifying the visa applicant, the Tribunal concluded that the visa application should be remitted to the Minister for reconsideration of the remaining visa criteria.