GUEDES (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding a Subclass 186 (Employer Nomination Scheme) visa application. The applicant sought review of a decision concerning the approval of an employer nomination. The core of the dispute revolved around whether the relevant nomination had been approved as required by clause 186.233 of the Migration Regulations.

The Tribunal was required to determine if the applicant met the criteria outlined in clause 186.233, specifically whether the nominated position was the subject of an approved nomination, that the nominator was the prospective employer, that the nomination had not been withdrawn, that there was no adverse information or that such information was disregarded, that the position remained available, and that the visa application was made within six months of the nomination approval. The Tribunal also had to consider the implications of a prior Departmental refusal of the nomination and a subsequent Tribunal decision that set aside that refusal and approved the nomination.

The Tribunal reasoned that the applicant had satisfied the requirements of clause 186.233(2) because the nomination, initially refused by the Department, had been subsequently approved by the Tribunal on 7 May 2021. Given this crucial finding, the Tribunal determined that the matter should be remitted for reconsideration. The Tribunal directed that the first named applicant met the criteria under clause 186.233, and therefore, the remaining criteria for their visa application, as well as the entirety of the second named applicant's visa application, should be reconsidered by the Minister.