He (Migration)

This matter concerned applications for Employer Nomination (Permanent) (Class EN) visas, Subclass 186 (Employer Nomination Scheme), specifically the direct entry stream. The Tribunal was required to determine whether the applicant was subject to an approved position nomination as mandated by clause 186.223 of Schedule 2 to the Migration Regulations 1994.

The central legal issue before the Tribunal was the interpretation and application of clause 186.233 of the Regulations, which outlines the requirements for an approved nomination in the direct entry stream. This clause requires that the nominated position be the subject of an approved nomination application, that the position identified in the visa application corresponds to the nominated position, and that the nominator is the prospective employer who has had the nomination approved.

The Tribunal found that a decision made on 2 September 2020 to approve a nominated position for the applicant as Chief Executive or Managing Director at ShunKang Investment Aust Pty Ltd, which also included other named applicants, satisfied clause 186.233(3) of the Regulations. The Tribunal was satisfied that the position for which the applicant was nominated and declared in the visa application had indeed been approved. Consequently, the Tribunal remitted the visa applications for the first, second, third, and fourth named applicants to the Minister for reconsideration of the remaining visa criteria, directing that the first named applicant met clause 186.233(3).