He (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) visa under the Direct Entry stream. The core dispute revolved around whether the applicant's nominated position had been approved, a prerequisite for the visa.

The Tribunal was required to determine if the nominated position met the requirements of clause 186.233 of Schedule 2 to the Migration Regulations 1994. This clause mandates 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the subject of an approved nomination, that the nominator be the prospective employer, that the nomination has not been withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available, and that the visa application was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 nominating employer, K&S Sydney Pty Ltd, had initially had its nomination for the position of Chef refused by the Department. However, following a review application by the employer, the Tribunal had previously set aside the Department's refusal and substituted a decision to approve the nomination. Consequently, the Tribunal concluded that the first applicant met the criteria under cl.186.233(3). The Tribunal therefore remitted the visa applications for reconsideration by the Minister, directing that the first applicant satisfied this specific criterion, allowing for the assessment of the remaining visa requirements, including those for secondary applicants.