Lee (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 (Employer Nomination Scheme) Direct Entry stream. The applicant sought review of a decision that had refused to approve the employer's nomination. The Administrative Appeals Tribunal (AAT) considered whether the requirements of clause 186.233 of Schedule 2 to the Migration Regulations 1994 were met.

The primary legal issue before the Tribunal was whether there was an approved nomination in respect of the applicant, as required by clause 186.233. This clause mandates that the nominated position must be the subject of an approved nomination application, that the nominator must be the prospective employer, that the nomination must not have been withdrawn, that there must be no adverse information known to Immigration (or such information must be disregarded), that the position must remain available to the applicant, and that the visa application must be made within six months of the nomination's approval.

The Tribunal accepted the applicant's oral evidence that he was genuinely employed as Managing Director by the nominator and that his services were still required. Crucially, the Tribunal noted that on 25 November 2019, it had set aside the Department's previous decision concerning the nomination application and substituted a decision to approve the nomination. Given this, and the evidence that the nominator would still employ the applicant, the position remained available, the visa application was within the time limit, and there was no adverse information, the Tribunal found that clause 186.233 was met.

Consequently, the Tribunal remitted the visa application for reconsideration by the Minister, with a direction that the first applicant met the criteria under clause 186.233. The applications of the second, third, and fourth named applicants, who applied as family unit members, were to be determined by reference to the outcome of the first applicant's application upon remittal.