Gill (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), under the Direct Entry stream. The applicant sought review of a decision by the Department of Home Affairs concerning the approval of a nomination for a position. The Tribunal was required to determine whether the position to which the visa application related was the subject of an approved nomination that identified the first named visa applicant.

The central legal issue was the interpretation and application of clause 186.233 of Schedule 2 to the Migration Regulations, which sets out the criteria for a nominated position in the Direct Entry stream. This clause requires, among other things, that the position be the subject of an approved nomination, that the nominator be the prospective employer, that the nomination has not been withdrawn, that there is no adverse information known to Immigration or that such information is reasonable to disregard, that the position remains available, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that the nomination lodged by Tipperary Pty Ltd ATF Shahnai India House Unit Trust had initially been refused by a delegate of the Minister. However, following an application for review, the Tribunal had set aside that refusal and substituted a decision approving the nomination on 30 September 2019. As the nomination had been approved and met the requirements of clause 186.233, the Tribunal concluded that this criterion was satisfied. Consequently, the Tribunal remitted the visa applications to the Minister for reconsideration of the remaining criteria.