LI (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream, for Mr Lingjun Li, with his family members also applying as members of his family unit. The dispute arose after the Department of Immigration refused the visa applications following the refusal of an employer nomination by Magich Pty Ltd for the position of Cook. The employer subsequently sought review of the nomination refusal by the Administrative Appeals Tribunal (AAT).

The primary legal issue before the Tribunal was whether Mr Li met the requirements of clause 186.223 of the Migration Regulations 1994, specifically concerning the approval of the employer's nomination. This clause requires, among other things, that the nominated position is the subject of an approved nomination that has not been withdrawn, that there is no adverse information about the nominator or associated persons, that the position remains available to the applicant, and that the visa application was made within six months of the nomination approval.

The Tribunal reasoned that it had previously set aside the Department's refusal of the nomination and substituted a decision to approve it. Based on the evidence before it, the Tribunal was satisfied that the nominating employer, Magich Pty Ltd, had its nomination for the Cook position approved and it had not been withdrawn. Furthermore, there was no adverse information known to Immigration regarding the nominator or associated persons, the position was confirmed as still available to Mr Li, and the visa application was made concurrently with the nomination, thus satisfying the time limit. Consequently, the Tribunal found that Mr Li met the requirements of clause 186.223.

Given these findings, the Tribunal remitted the visa applications for reconsideration by the Minister, with a direction that Mr Li meets the criteria under clause 186.223. The applications of his family members would be determined by reference to the outcome of Mr Li's application on remittal.