CREASEY (Migration)

The Administrative Appeals Tribunal (AAT) considered a migration matter concerning an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Direct Entry stream. The applicant sought review of a decision relating to an approved nomination for a Marketing Specialist position.

The primary legal issue before the Tribunal was whether the position to which the visa application related was the subject of an approved nomination that identified the visa applicant, as required by clause 186.233 of the Migration Regulations 1994. This clause, as applicable, stipulated several conditions, including that the nominating person must be the prospective employer, the nomination must have been approved and not withdrawn, there must be no adverse information known to the Department of Home Affairs about the nominator or associated persons (or such information must be reasonable to disregard), the position must remain available, and the visa application must have been lodged within six months of the nomination's approval.

The Tribunal noted that the nomination lodged by Below the Belt Pty Ltd was initially refused on 12 January 2018. However, following an application for review lodged on 12 June 2018, the Tribunal set aside the refusal decision and substituted a new decision approving the nomination on 19 June 2020. The Tribunal reasoned that as the relevant nomination had now been approved, the applicant met the requirements of clause 186.233, finding that the position was the subject of an approved nomination that identified the applicant.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant meets the criteria under clause 186.233 of Schedule 2 to the Regulations.