Huang (Migration)

This matter concerned an application for a Subclass 186 Employer Nomination Scheme (ENS) visa. The Tribunal was required to determine whether the nomination for the visa applicant had been refused. The applicants relied on evidence previously provided to the department and the Tribunal, as well as written submissions.

The primary legal issue before the Tribunal was whether the nomination had been refused, and consequently, whether the visa applicant met the requirements of clause 186.233 of Schedule 2 to the Migration Regulations. This clause outlines several criteria, including that the nominated position must be the subject of an approved nomination, that the employer must be the nominator, that the nomination must have been approved and not withdrawn, that there must be no adverse information concerning the nominator or associated persons, that the position must still be available, and that the visa application must have been made within six months of the nomination approval.

The Tribunal found that the nomination had not been refused. It relied on its previous decision of 11 September 2018, which set aside the Department's refusal and substituted a decision approving the appointment for the position of Corporate General Manager. Based on the evidence, the Tribunal was satisfied that the approved position was the same as that nominated and declared in the visa application. It also found that the employer was the nominator and that the visa applicant met the requirements of clause 186.233.

Given these findings, the Tribunal remitted the visa application to the Minister for reconsideration, with the direction that the first applicant met the criteria specified in clause 186.233.