Du (Migration)

This matter concerned an appeal by a visa applicant against a decision to refuse an Employer Nomination (Permanent) (Class EN) visa, specifically under the Temporary Residence Transition stream for an Accountant (General) position. The appeal was heard by the Tribunal, presided over by Member Peter Emmerton.

The primary legal issue before the Tribunal was whether the nomination for the visa applicant's position had been approved, as required by clause 186.223 of Schedule 2 to the Migration Regulations. This clause sets out several conditions, including that the nominated position must be the subject of an approved nomination application, that the nomination must not have been withdrawn, that there must be no adverse information known to Immigration concerning the nominator or associated persons (or such information must be disregarded), that the position must still be available to the applicant, and that the visa application must have been made no more than six months after the nomination was approved.

The Tribunal reasoned that it had previously set aside the Department's refusal decision and substituted a decision approving the appointment for the position of Accountant (General). Based on the evidence before it, the Tribunal was satisfied that the approved position corresponded to the one nominated and declared in the visa application. It also found that the nominator was the correct person, the appointment had not been withdrawn, and the position remained available. Crucially, the Tribunal determined that the visa application, lodged on 30 June 2017, was made within six months of the nomination approval on 17 August 2020, thus satisfying clause 186.223.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant met the criteria specified in clause 186.223 of Schedule 2 to the Regulations.