GAO (Migration)

This matter concerned an appeal before the Tribunal regarding an Employer Nomination (Permanent) (Class EN) visa, specifically under the Temporary Residence Transition stream of Subclass 186. The applicant, Mr. Gao, sought review after the Department refused his employer's nomination application. The Tribunal was required to determine whether the criteria for an approved nomination, as stipulated by clause 186.223 of Schedule 2 to the Regulations, were met.

The central legal issue was whether the position nominated for Mr. Gao was the subject of an approved nomination that had not been withdrawn, whether there was any adverse information concerning the nominator or associated persons, and crucially, whether the position remained available to the applicant. The Tribunal also considered the timing of the visa application in relation to the nomination approval.

The Tribunal found that it had set aside the Department's decision to refuse the nomination and substituted it with a decision to approve the nomination. Based on submissions from the employer's director, the Tribunal was satisfied that the nominated position had not been withdrawn and remained available to Mr. Gao, who was considered to play a critical role in the business. Furthermore, no adverse information was known to Immigration regarding the nominator or associated persons. The Tribunal also confirmed that the visa application was made within six months of the nomination approval.

Consequently, the Tribunal remitted the Employer Nomination (Permanent) (Class EN) visa applications for reconsideration by the Minister, with a direction that Mr. Gao met the criteria under clause 186.223.