Hari (Migration)

This matter concerned an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), specifically the Direct Entry stream. The applicant sought review of a decision concerning an approved nomination made by Softvision Australia Pty Ltd for the position of Developer Programmer. The Tribunal, constituted by Wan Shum, considered whether the nomination met the requirements of clause 186.233 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the position to which the visa application related was approved under the Direct Entry stream, as required by clause 186.233(3). This involved determining if the nomination had been approved and not withdrawn, if there was no adverse information concerning the nominator or associated persons, if the position remained available to the applicant, and if the visa application was lodged within six months of the nomination's approval. The Tribunal also considered whether the applicant's declaration on the visa application form met the requirements of clause 186.233(1)(b) in relation to the nominated position.

The Tribunal found that the applicant had provided details of a relevant nomination with a matching transaction reference number, and that the applicant had made the necessary declaration. It was established that the nomination met the requirements of regulation 5.19(4), identified the applicant as a 457 visa holder, and had been approved by the Tribunal on 22 April 2020 and not subsequently withdrawn. The Tribunal was satisfied that the position remained available to the applicant, and that the visa application was made prior to the six-month time limit after nomination approval. Furthermore, the Tribunal was not aware of any adverse information concerning the nominator or associated persons.

Consequently, the Tribunal concluded that all the requirements of clause 186.233 were met. The Tribunal remitted the Employer Nomination (Permanent) (Class EN) visa applications for reconsideration by the Minister, with a direction that the first named applicant met the criteria under clause 186.233 of Schedule 2 to the Regulations.