Devkota (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) (Subclass 186) visa under the direct entry stream. The applicant sought to have a decision affirmed by the Administrative Appeals Tribunal, which had refused their visa application. The core of the dispute revolved around whether the applicant met the requirements of clause 186.233 of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to determine whether the nominated position was the subject of an approved nomination, as mandated by clause 186.233. This clause specifies several conditions, including that the nominator must be the prospective employer, the nomination must have been approved and not withdrawn, and the position must still be available to the applicant. Crucially, it also requires that the visa application be made within six months of the nomination's approval and that there be no adverse information known to Immigration about the nominator or associated persons, or that such information be disregarded.

The Tribunal found that the application for approval of the nominated position by the nominator had been refused by a delegate of the Minister, and this decision was subsequently affirmed by the Tribunal itself upon review. As there was no evidence of an approved nomination by another nominator, the Tribunal concluded that clause 186.233 was not met. Consequently, the Tribunal affirmed the decision not to grant the applicants the Subclass 186 visas.