Kang (Migration)

This matter concerned an appeal by the applicant, Kang, and his family members regarding an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) under the Direct Entry stream. The core dispute revolved around the approval of the nominated position of Sales and Marketing Manager. The Administrative Appeals Tribunal (the Tribunal) was required to review the Department of Home Affairs' refusal to approve the nomination.

The primary legal issue before the Tribunal was whether the applicant's nominated position met the requirements of clause 186.233 of Schedule 2 to the Migration Regulations. This clause outlines several conditions, including that the position must be the one nominated, the nominator must be the prospective employer, the nomination must have been approved and not withdrawn, there must be no adverse information concerning the nominator or associated persons, the position must remain available, and the visa application must be lodged within six months of the nomination's approval.

The Tribunal reasoned that the employer's nomination for the Sales and Marketing Manager position had been approved by the Tribunal on 16 March 2020, thereby satisfying the requirement that the nomination be approved and not subsequently withdrawn. The Tribunal was also satisfied, based on the evidence presented, that no adverse information existed regarding the nominator or associated persons, that the position remained available to the applicant, and that the visa application was made within the prescribed timeframe. Consequently, the Tribunal concluded that clause 186.233 was met.

Given these findings, the Tribunal remitted the visa applications to the Minister for reconsideration of the remaining visa criteria. The applications of the second, third, fourth, and fifth named applicants, who applied as family members of the first applicant, were to be determined by reference to the outcome of the first applicant's application upon remittal.