DOBYSHEVA (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal (AAT) regarding an Employer Nomination (Permanent) (Class EN) Visa, Subclass 186, Direct Entry stream. The applicant sought review of a decision concerning their eligibility for this visa, specifically in relation to an ICT Business Development Manager position. The core of the dispute revolved around whether the nominated position remained available to the applicant.

The Tribunal was required to determine whether the nominated position was still available to the applicant, as stipulated by clause 186.233(5) of Schedule 2 to the relevant regulations. This clause is part of a broader set of criteria for the approval of an employer nomination in the Direct Entry stream, which also requires the position to be the subject of an approved nomination, that the nominator is the intended employer, and that the nomination has not been withdrawn.

The Tribunal found that the employer nomination by O-Lin Lights Pty Ltd had been approved on 20 December 2018. Crucially, the Tribunal concluded that the position was indeed still available to the applicant, thereby satisfying clause 186.233(5). Consequently, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining eligibility criteria.