Mohammed (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), under the temporary residence transition stream. The applicant's nominating employer, MM & KM Pty Ltd, had its nomination for the position of Cook refused by the Department. The applicant sought review of this refusal before the Tribunal.

The primary legal issue before the Tribunal was whether the relevant nomination had been approved, as required by clause 186.223 of the Migration Regulations 1994. This clause mandates that the nominated position must be the subject of an approved nomination application that identifies the visa applicant, has not been withdrawn, and for which there is no adverse information known to Immigration, or such information is reasonable to disregard. Furthermore, the position must remain available to the applicant, and the visa application must have been lodged no more than six months after the nomination was approved.

The Tribunal found that the position nominated was the same as that in the visa application declaration, the applicant was identified as a Subclass 457 visa holder in the nomination, and the nomination had been approved by the Department on 4 December 2020, and not subsequently withdrawn. The Tribunal was also satisfied that there was no adverse information concerning the nominator or associated persons, the position remained available, and the visa application was made within the six-month timeframe. Consequently, the Tribunal concluded that the applicant met clause 186.223.

The Tribunal remitted the visa applications for reconsideration by the Minister, with a direction that the first applicant meets the criteria under clause 186.223 of Schedule 2 to the Regulations.