Loftus (Migration)

This matter concerned applications for Employer Nomination (Permanent) (Class EN) visas, specifically the Subclass 186 (Employer Nomination Scheme) visa under the Direct Entry stream. The primary applicant, Mr Brent Mathew Loftus, sought this visa, with his family members applying as secondary applicants. The dispute centred on whether the nominated position of Industrial Engineer met the requirements of clause 186.233(3) of Schedule 2 to the Migration Regulations 1994. The decision was made by Karen McNamara, a Member of the Administrative Appeals Tribunal.

The Tribunal was required to determine if the applicant met the criteria set out in clause 186.233(3), which mandates that the nominated position be the subject of an approved nomination in the Direct Entry stream, identify the applicant in relation to that position, and that the nominating employer is the prospective employer. Further, the nomination must have been approved and not withdrawn, with no adverse information known to Immigration, the position remaining available, and the visa application lodged within six months of the nomination's approval.

The Tribunal found that the nominating employer, Australian Polyurethane Solutions Pty Limited, had initially had its nomination refused by the Department. However, following a review by the Tribunal in a separate matter (AAT Case No. 1908234), the Department's decision was set aside, and the nomination was approved on 27 June 2022. Consequently, the Tribunal concluded that the first named applicant, Mr Brent Mathew Loftus, satisfied clause 186.233(3).

Given this finding, the Tribunal remitted the visa applications for reconsideration by the Minister. The direction was that the first named applicant meets the criteria under clause 186.233(3) for a Subclass 186 visa, with the remaining criteria to be assessed by the Department. The applications of the secondary applicants would be determined by reference to the outcome of Mr Loftus's application.