Fan (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa under the Direct Entry stream. The applicant's nominated position was Corporate General Manager, with Halo Fortune Group Pty Ltd as the nominating employer. The Department initially refused to approve the nomination, leading the employer to seek review by the Tribunal. The Tribunal, constituted by Member Cathrine Burnett-Wake, was required to determine whether an approved nomination existed for the applicant.

The central legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223(2) of Schedule 2 to the Migration Regulations 1994, which necessitates an approved nomination for the position. This clause, particularly for nominations made on or after 1 July 2017, requires that the nominated position be the one in relation to which the applicant is identified, that the nominator is the prospective employer, that the nomination has been approved and not withdrawn, that there is no adverse information known to the Department about the nominator or associated persons, that the position remains available, and that the visa application was lodged within six months of the nomination's approval.

The Tribunal found that the employer's application for approval of the nominated position had been made and subsequently reviewed. On 31 May 2018, the Tribunal set aside the Department's refusal and substituted a decision to approve the nomination under regulation 5.19(4). As the nomination had been approved, the Tribunal concluded that the applicant met the criterion in clause 186.223(2). Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, directing that the applicant met this specific criterion.