Khan (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Direct Entry stream, for a position as an Occupational Health and Safety Adviser. The applicant, Mr Khan, was nominated by Airig Pty Ltd. The decision under review was made by the Administrative Appeals Tribunal (AAT).

The primary legal issue before the Tribunal was whether the applicant was the subject of an approved nomination, as required by clause 186.233 of Schedule 2 to the Migration Regulations. This clause outlines several requirements, including that the nominated position must be the one identified in the visa application, the nominator must be the prospective employer, the nomination must have been approved and not withdrawn, there must be no adverse information known to the Department about the nominator or associated persons (or such information must be disregarded), the position must remain available, and the visa application must be made within six months of the nomination's approval.

The Tribunal found that the applicant met all the requirements of clause 186.233. It noted that the nomination was initially refused by the Department but was subsequently approved by the Tribunal on 22 December 2020. The Tribunal was satisfied that the nomination had not been withdrawn, the position remained available, and the visa application was lodged within the six-month timeframe. Furthermore, there was no evidence of adverse information known to the Department concerning the nominator.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria. The Tribunal directed that the applicant met the criteria specified in clause 186.233 of Schedule 2 to the Regulations.