Diaz (Migration)

This matter concerned an appeal by the applicant, Mr. Diaz, against the refusal of his Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 (Employer Nomination Scheme) direct entry stream. The core of the dispute revolved around whether the nominated position for a software engineer met the requirements of clause 186.233 of the relevant regulations. The applicant's employer, Desygner Pty Ltd, had made the nomination, and the Department had initially refused to approve it. The Administrative Appeals Tribunal (the Tribunal) was tasked with reviewing this refusal.

The primary legal issue before the Tribunal was to determine if the nominated position satisfied all the criteria stipulated in clause 186.233. This clause outlines several conditions, including that the position must be the subject of an approved nomination, that the nominating employer must be the prospective employer, that the nomination must not have been withdrawn, that there must be no adverse information known to the Department about the nominator or their associates, that the position must remain available to the applicant, and that the visa application must have been lodged within six months of the nomination's approval.

The Tribunal found that the nominated position of Software Engineer met the requirements of clause 186.233. It noted that the nominating employer, Mr. Alexander Rich, the director of Desygner Pty Ltd, was also the prospective employer, and the nomination had been approved by the Tribunal after setting aside the Department's initial refusal. Furthermore, there was no adverse information known to Immigration concerning the nominator or their associates, the position remained available as evidenced by a recent employment contract, and the visa application was lodged within the prescribed six-month period following the nomination's approval.

Consequently, the Tribunal concluded that the matter should be remitted for reconsideration by the Minister. The Tribunal directed that the primary applicant met the criteria under clause 186.233 and that the secondary applicants' visa applications should also be remitted for reconsideration.