Hans (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 concerning the approval of a nomination for the position of Cook. The decision under review was made by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the position to which the visa application related was the subject of an approved nomination in the Direct Entry stream, as required by clause 186.233 of Schedule 2 to the Migration Regulations. This clause necessitates that the nominated position be identified in the visa application, that the nominator be the prospective employer, that the nomination has been approved and not withdrawn, that there is no adverse information known to the Department about the nominator or associated persons (or such information is reasonable to disregard), that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 nomination, initially lodged on 8 August 2016, was refused by a delegate of the Minister of Home Affairs on 12 April 2018. However, following a review application by the nominator, the Tribunal set aside the primary decision on 26 July 2019 and substituted a new decision approving the nomination. Consequently, the Tribunal concluded that the nominated position met the requirements of clause 186.233, including the absence of adverse information and its continued availability.

Given these findings, the Tribunal remitted the visa applications to the Minister for reconsideration, with a direction that the first named applicant had met the criteria under clause 186.233 of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the grant of the visas.