LIN (Migration)

This matter concerned an application for review before the Administrative Appeals Tribunal (AAT) regarding a Subclass 186 (Employer Nomination Scheme) visa. The applicant sought to satisfy the requirements of cl.186.233(3) of Schedule 2 to the Regulations. The core dispute revolved around whether the nomination for the position of Massage Therapist, made by S Cui & X Fan & Q Wang, had been validly approved by the Minister, as required by the visa subclass criteria.

The Tribunal was required to determine if the applicant met the requirements of cl.186.233(3), which necessitates, among other things, that the nomination has been approved and not subsequently withdrawn, and that the position remains available to the applicant. A key aspect of the determination involved considering the prior refusal of the nomination by the Department of Immigration and Border Protection and the subsequent AAT decision that set aside that refusal and substituted an approval of the nomination.

The Tribunal reasoned that, following its own decision on 23 November 2020, which approved the nomination under r.5.19 of the Regulations, the applicant had satisfied the requirements of cl.186.233(3). The Tribunal noted that the nomination was made by the prospective employer, had been approved, and had not been withdrawn. Therefore, the Tribunal concluded that the applicant met this specific criterion for the visa.

Consequently, the Tribunal remitted the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration by the Minister, with a direction that the applicant satisfies cl.186.233(3) of Schedule 2 to the Regulations. The Minister is to consider the remaining criteria for the visa.