HUYNH (Migration)

The Administrative Appeals Tribunal reviewed decisions to refuse an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream, for the applicants, who were represented by Mr. Huynh. The nominator, The Trustee for Cronulla Bake House Unit Trust, also sought review of the refusal. The Tribunal considered whether the nominated position of Pastry Cook met the relevant criteria for the visa.

The primary legal issue before the Tribunal was whether the nominated position satisfied the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994. This involved determining if the nomination had been approved and not withdrawn, if there was no adverse information known to Immigration about the nominator or associated persons, if the position remained available to the applicant, and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 found that the nominated position met the requirements of clause 186.223(1) as the applicant was identified as a Subclass 457 visa holder in the nomination, and the necessary declaration was made. The Tribunal approved the nomination on 12 November 2019, and it had not been withdrawn. The applicant was employed by the nominator, and the position was still available. However, the visa application was made before the nomination was approved, meaning it was not lodged within the six-month timeframe stipulated by clause 186.223(5). Regarding adverse information, the Tribunal noted an investigation by the Fair Work Ombudsman that concluded without findings and information about a possible penalty notice from the NSW Food Authority, which the nominator claimed was a warning. The Tribunal concluded that neither the investigation nor the alleged warning constituted "adverse information" as defined.

Consequently, the Tribunal remitted the applications for reconsideration by the Minister, with a direction that the first applicant met the criteria under clause 186.223 of Schedule 2 to the Regulations.