Hutcheson Clelland (Migration)

This matter concerned applications for Employer Nomination (Permanent) (Class EN) visas, specifically under the Subclass 186 (Employer Nomination Scheme) Direct Entry stream, for the position of Cabinetmaker. The primary dispute revolved around whether the applicants were the subject of an approved nomination for the position. The decision was made by the Tribunal on review.

The central legal issue before the Tribunal was to determine whether the applicants satisfied the criteria for a Subclass 186 visa, particularly clause 186.233 of Schedule 2 to the Regulations, which pertains to the approval of the nominated position. This involved assessing whether the nominated position was the subject of an approved nomination, whether the nominator was the prospective employer, if the nomination had been withdrawn, if there was any adverse information concerning the nominator or associated persons, and if the position remained available and the visa application was lodged within the prescribed timeframe after nomination approval.

The Tribunal reasoned that on 22 July 2022, it had set aside the Department's decision regarding the nomination application and substituted a decision approving the nomination. Based on this, the Tribunal found that the first applicant met clause 186.233(3) and the broader clause 186.233. It further found that the nomination had been approved and not withdrawn, the nominator was the prospective employer, there was no adverse information, the position was still available, and the visa application was made within six months of the nomination's approval. Consequently, the Tribunal concluded that the primary applicant met the relevant criteria.

Given these findings, the Tribunal remitted the visa applications for reconsideration by the Minister. The Tribunal directed that the first named applicant met criteria 186.233(3) and 186.233, and that the second and third-named applicants met criterion 186.311 of Schedule 2 to the Regulations, with the Minister to consider the remaining criteria for the visas.