Dumpleton (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 (Employer Nomination Scheme) Direct Entry stream. The applicant's nominating employer, Get a Handle on it (Aust) P/L, had applied for approval of a Cabinetmaker position in respect of the applicant. The Department initially refused to approve the nomination, leading the employer to seek review by the Tribunal. The Tribunal, constituted by Cathrine Burnett-Wake, was required to determine whether the nomination met the relevant criteria.

The primary legal issue before the Tribunal was whether there was an approved nomination for the applicant's visa application. This involved assessing compliance with clause 186.233 of Schedule 2 to the Regulations, which outlines several requirements for a nomination. These include that the nominated position must be the one identified in the visa application, the employer must be the nominator, the nomination must have been approved and not withdrawn, there must be no adverse information known to Immigration about the nominator or associated persons (or such information must be reasonably disregarded), the position must remain available to the applicant, and the visa application must have been lodged within six months of the nomination's approval.

The Tribunal found that on 31 October 2018, it had set aside the Department's refusal and substituted a decision to approve the nomination under subregulation 5.19(4). Given this finding, the Tribunal concluded that the appropriate course was to remit the visa application to the Minister for reconsideration of the remaining visa criteria. The Tribunal also directed that the second, third, and fourth applicants, who applied as family unit members of the first applicant, would have their applications determined by reference to the outcome of the first applicant's application upon remittal. The Tribunal remitted the application for reconsideration with the direction that the applicant met criterion cl.186.233(3) of Schedule 2 to the Regulations.