Legaspi (Migration)

This matter concerned an appeal by an applicant for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Direct Entry stream, for the occupation of Electronic Equipment Trades Worker. The core dispute revolved around whether the applicant met the criteria for an approved nomination in relation to the position. The decision was made by K. Chapman, a Member of the Tribunal.

The legal issues before the Tribunal were whether the applicant's nominated position was the subject of an approved nomination, whether the nominator was the intended employer, whether the nomination had been approved and not withdrawn, whether there was any adverse information concerning the nominator, whether the position remained available, and whether the visa application was made within the prescribed timeframe. The Tribunal was required to consider clause 186.233 of the Migration Regulations 1994, which sets out these specific requirements for a Subclass 186 visa nomination.

The Tribunal found that the applicant's oral evidence, which indicated genuine employment and a continuing need for his services, was credible. Crucially, the Tribunal had previously set aside the Department's decision and substituted a decision to approve the nomination. The evidence before the Tribunal confirmed that the original nominator intended to continue employing the applicant, that the visa application was lodged within the required six-month period after nomination approval, and that there was no adverse information regarding the nominator. Consequently, the Tribunal concluded that criterion 186.233 was met.

Given that the nomination criteria were satisfied, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria. The Tribunal also directed that the applications of any family unit members would be determined by reference to the outcome of the primary applicant's reconsidered application.