Lucas (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Direct Entry stream, for the first applicant, with the second and third applicants applying as members of the family unit. The dispute before the Tribunal was whether the nominated position met the requirements of clause 186.233 of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to determine if the nominated position was the subject of an approved nomination, if the employer was the nominator, if the nomination had been approved and not withdrawn, if there was no adverse information known to Immigration concerning the nominator or associated persons, if the position remained available to the applicant, and if the visa application was made within six months of the nomination's approval. The Tribunal also had to consider the applications of the second and third applicants, which were dependent on the outcome of the first applicant's application.

The Tribunal reasoned that the nominated position was the same as that in the nomination application, and the employer was the nominator. It noted that the Department had initially refused the nomination, but the Tribunal had subsequently set aside that refusal and approved the nomination. The Tribunal was satisfied that there was no adverse information, the nomination had not been withdrawn, the position was still available, and the visa application was lodged within the prescribed timeframe. Consequently, the Tribunal found that the first applicant met all the requirements of clause 186.233.

The Tribunal remitted the visa application for reconsideration by the Minister, with a direction that the first applicant meets the criteria under clause 186.233. The applications of the second and third applicants were also remitted for reconsideration in accordance with this direction.