Lee (Migration)

This matter concerned an appeal by Sheridan Lee, the applicant, against a decision of the Department of Immigration and Border Protection (now the Department of Home Affairs) concerning an Employer Nomination (Permanent) (Class EN) Visa, Subclass 186, Direct Entry stream. The applicant's nominating employer, Salt Design and Construction Pty Ltd, had initially applied for approval of the nominated position of Interior Designer. The Department refused to approve the nomination, leading to an application for review by the employer to the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the requirements of cl.186.233 of the Migration Regulations 1994, which outlines the criteria for a Subclass 186 visa in the Direct Entry stream. This included whether the nominated position was approved, the nomination had not been withdrawn, there was no adverse information concerning the nominator or associated persons, the position remained available to the applicant, and the visa application was made within six months of the nomination approval.

The Tribunal found that the employer's nomination had been approved by the Tribunal on 17 April 2018, setting aside the Department's earlier refusal. It was also satisfied that the nomination had not been withdrawn, there was no adverse information known to the Department, the position was still available, and the visa application was made concurrently with the nomination. Consequently, the Tribunal concluded that the applicant met the criteria under cl.186.233.

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