Francis (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, a software engineer, had his visa application refused. The core of the dispute revolved around whether the applicant had an approved position nomination that had not ceased to be valid.

The Tribunal was required to determine if the applicant met the criteria for a Subclass 186 visa, particularly clause 186.233 of Schedule 2 to the Regulations, which outlines the requirements for an approved nomination. This included assessing whether the nominated position was properly identified, whether the employer was the nominator, if the nomination had been approved and not withdrawn, the absence or disregard of adverse information concerning the nominator, the continued availability of the position, and the timeliness of the visa application relative to the nomination approval.

The Tribunal found that while the applicant's employer did not have an approved nomination at the time of the Department's initial decision, the employer had lodged a review application. The Tribunal subsequently set aside the Department's refusal and substituted a decision approving the nomination. Based on this, the Tribunal was satisfied that all relevant criteria under clause 186.233 were met, including the availability of the position supported by various documents and the timely lodgement of the visa application.

Consequently, the Tribunal remitted the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration. The Tribunal directed that the first applicant met the criteria for a Subclass 186 visa, and the applications of the second and third applicants would be determined by reference to the outcome of the first applicant's remitted application.