Mcauley (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) Direct Entry stream. The central dispute revolved around whether the applicant had an approved nomination for the position, a prerequisite for the visa. The decision was made by Warren Stooke AM of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was to determine if the applicant met the requirements of clause 186.233 of Schedule 2 to the Migration Regulations 1994, which outlines the criteria for an approved nomination in the Direct Entry stream. This clause requires, among other things, that the nominated position be identified in the visa application, that the nominator be the prospective employer, that the nomination has been approved and not withdrawn, that there is no adverse information concerning the nominator, that the position remains available, and that the visa application was lodged within six months of the nomination's approval.

The Tribunal found that the applicant had satisfied clause 186.233. It was satisfied that the nominating sponsor had provided evidence of an ongoing employment contract exceeding two years, that the position had not been withdrawn and remained available with the nominee currently employed, and that the visa application was made prior to the nomination's approval. Furthermore, the Tribunal was satisfied that no adverse information existed that would preclude approval. Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, directing that the applicant met the criteria under clauses 186.233 and 186.223 of Schedule 2 to the Regulations.