KAWEEWATTANAKORN (Migration)

The Administrative Appeals Tribunal (AAT) considered an appeal concerning an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) Direct Entry stream. The dispute arose after a nomination for the visa was initially refused by a delegate but subsequently approved by the Tribunal. The applicant sought reconsideration of the visa application following this approval.

The primary legal issue before the Tribunal was to determine whether the applicant met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause pertains to the approval of a nominated position for applicants in the Temporary Residence Transition stream, requiring the applicant to have been identified in the nomination, the position to be the subject of a declaration, and for the nomination to have been approved and not withdrawn. Additionally, the Tribunal had to consider whether there was any adverse information known to the Department of Immigration, whether the position remained available, and the timeframe between nomination approval and visa application.

The Tribunal reasoned that on 2 August 2018, it had approved the nomination. It found no adverse information concerning the nominator or associated persons. Furthermore, the position was still available to the applicant, and the visa application had been made prior to the nomination's approval. Based on these findings, the Tribunal concluded that all requirements of clause 186.223 had been satisfied.

Consequently, the Tribunal remitted the visa 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.