DEAVE (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a refusal of an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) visa under the Temporary Residence Transition stream. Both the employer, Live Productions Australia Pty Ltd, and the applicant sought review of the decision. The Tribunal was required to determine whether the nominated position met the criteria for the visa.

The primary legal issue before the Tribunal was whether the nominated position satisfied the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause mandates that the position must be the subject of an approved nomination, that the applicant must have been identified as a Subclass 457 visa holder in relation to that nomination, and that a specific declaration must have been made in the visa application. Further requirements included that the nomination had not been withdrawn, there was no adverse information concerning the nominator or associated persons, the position remained available to the applicant, and the visa application was lodged within six months of the nomination's approval.

The Tribunal found that the applicant had provided details of a relevant nomination, identifying them as a Subclass 457 visa holder, and had made the necessary declaration. The Tribunal had approved the nomination, which had not been withdrawn, and was satisfied that the position remained available to the applicant. Crucially, the Tribunal determined that the visa application was made prior to the nomination's approval, thus satisfying the requirement that it was lodged no more than six months after approval. The Tribunal also found no adverse information regarding the nominator. Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the first applicant met the criteria under clause 186.223.