Chokchainimit (Migration)

The Administrative Appeals Tribunal considered a dispute concerning an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) visa under the Temporary Residence Transition stream. The primary applicant, identified as the subject of an approved nomination, sought review of a decision that had refused their visa application. The Tribunal's decision focused on whether the nomination for the position of Corporate General Manager had been validly approved.

The central legal issue before the Tribunal was whether the applicant's employer, Kaogrong Pty Ltd, had an approved nomination in respect of the applicant at the time of the delegate's initial decision, and whether the criteria under clause 186.223 of the Migration Regulations 1994 were met. This clause requires, among other things, that the nomination has been approved, has not been withdrawn, there is no adverse information concerning the nominator or associated persons, the position remains available, and the visa application was made within six months of the nomination's approval.

The Tribunal found that while the employer did not have an approved nomination at the time of the delegate's decision, the Tribunal itself had subsequently set aside the Department's refusal of the nomination and substituted a decision to approve it. Based on this, the Tribunal was satisfied that all the requirements of clause 186.223 were met, including the employer's continued employment of the applicant, the approval and non-withdrawal of the nomination, the absence of adverse information, the availability of the position, and the timely visa application. Consequently, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining criteria, noting that the secondary applicants' eligibility would be determined by the outcome of the primary applicant's application.