Lee (Migration)

This matter concerned an appeal by an applicant for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream, who was nominated for the position of Cook. The applicant sought review of a decision by the Department of Immigration and Border Protection to refuse to approve the nomination. The Administrative Appeals Tribunal was required to determine whether the applicant satisfied the criteria for the visa, specifically clause 186.223 of the Regulations.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223(2), which stipulates that the Minister must have approved the nomination. This clause, in conjunction with other provisions, requires that the nominated position be the subject of an approved nomination application that identifies the visa applicant, that the nomination has not been withdrawn, that there is no adverse information known to Immigration about the nominator or their associates (or such information is reasonable to disregard), that the position remains available to the applicant, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that the nomination had been approved by the Tribunal itself, setting aside the Department's refusal, and had not been withdrawn. It also determined that there was no adverse information known to Immigration concerning the nominator, Mr Adam Slijderink, director of Oxenford Sushi Pty Ltd trading as Sushi Train Oxenford Station, or his associates. Furthermore, the Tribunal was satisfied that the employment contract demonstrated the position remained available to the applicant and that the visa application was lodged within the prescribed six-month timeframe after the nomination's approval.

Consequently, the Tribunal remitted the primary applicant's visa application to the Minister for reconsideration of the remaining visa criteria. The Tribunal also directed that the secondary applicants' visa applications be remitted for reconsideration.