Jahan (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream. The applicant, identified as the first named applicant, sought this visa in relation to an approved nomination. The core dispute revolved around whether the applicant met the criteria for the visa, particularly in light of adverse information that had come to the Department's attention.

The Tribunal was required to determine if the applicant satisfied clause 186.223 of Schedule 2 to the Migration Regulations 1994. This involved assessing whether the nominated position was correctly identified and declared, if the nomination had been approved and not withdrawn, if the position remained available, and if the visa application was lodged within the prescribed timeframe. Crucially, the Tribunal also had to consider the presence of adverse information concerning the nominator or associated persons, and whether it was reasonable to disregard such information.

The Tribunal found that the nomination and visa applications aligned, and that the position remained available and the application was lodged within the six-month limit. While the Department's records indicated allegations of employer/sponsor breach in April and July 2016, no action was taken, and the source of these allegations was unclear. The Tribunal afforded the applicant and the nominator an opportunity to comment on this information, and both denied any knowledge of such allegations. Given the lack of substantiation, the absence of departmental action, and the parties' lack of awareness, the Tribunal concluded it was reasonable to disregard the adverse information.

Consequently, the Tribunal remitted the applications for reconsideration, directing that the first named applicant met the criteria under clause 186.223. The applications of the second and third named applicants, who applied as family members, were also remitted for reconsideration on the basis that the primary applicant satisfied the relevant criteria.