Cole (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa under the direct entry stream. The applicant, nominated by O’Connor Contracting Pty Ltd for the position of Fitter (General), had their employer's nomination initially refused by the Department. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant was the subject of an approved nomination for the visa.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.233 of Schedule 2 to the Migration Regulations 1994. This clause outlines several criteria, including that the nominated position must be the subject of an approved nomination application, the employer must be the nominator, the nomination must not have been withdrawn, there must be no adverse information known to Immigration about the nominator or associated persons (or such information must be reasonable to disregard), the position must remain available to the applicant, and the visa application must be made within six months of the nomination's approval.

The Tribunal found that the nominated position was the same as that in the nomination application and that the employer was the nominator. Crucially, the Tribunal noted that it had previously set aside the Department's refusal and substituted a decision approving the nomination on 18 December 2020. The Tribunal was satisfied that the nomination had not been withdrawn, the position remained available, and the visa application was made within the prescribed timeframe. Furthermore, no evidence of adverse information concerning the nominator was presented. Consequently, the Tribunal concluded that the applicant met all the requirements of clause 186.233.

Given these findings, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria. The Tribunal directed that the first named applicant met the criteria specified in clause 186.233 of Schedule 2 to the Regulations.