Dandu (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Direct Entry stream. The applicant's visa application had been refused following the refusal of a nomination by the Department. The employer, MS Technologies Australia Pty Ltd, sought review of the nomination refusal. The Administrative Appeals Tribunal (the Tribunal) considered whether the requirements of clause 186.233 of Schedule 2 to the Regulations were met.

The primary legal issue before the Tribunal was to determine if the nominated position met the criteria set out in clause 186.233. This clause requires, among other things, that the position be the subject of an approved nomination, that the nominator be the prospective employer, that the nomination has not been withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons (or such information is reasonable to disregard), that the position remains available to the applicant, and that the visa application was made within six months of the nomination approval.

The Tribunal found that the relevant nomination had indeed been approved by the Tribunal on 8 August 2018, setting aside the delegate's earlier refusal. It was also satisfied that the nomination had not been withdrawn, that no adverse information was known to Immigration concerning the nominator or associated persons, and that the position remained available to the applicant. Based on these findings, the Tribunal concluded that clause 186.233 was met.

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. The Minister was to consider the remaining criteria for the visa.