MOHAMMED (Migration)

This matter concerned an application before the Administrative Appeals Tribunal (AAT) concerning visa applications made by Mr. Mohammed and his family. The dispute centred on whether the primary applicant met the criteria for a Subclass 186 (Employer Nomination Scheme) visa, specifically clause 186.223 of Schedule 2 to the Regulations. The AAT considered the matter on the papers, deeming a hearing unnecessary.

The primary legal issue before the Tribunal was to determine if the nomination for the position of Supply and Distribution Manager, made by the applicant's employer, had been approved and met all the requirements of clause 186.223. This clause mandates that the nominated position must have been approved, not subsequently withdrawn, and that there must be no adverse information known to Immigration about the nominator or associated persons, or such information must be reasonable to disregard. Furthermore, the position must remain available to the applicant, and the visa application must have been lodged within six months of the nomination's approval.

The Tribunal found that the nomination application, initially refused by the Department, was subsequently approved by the Tribunal itself on 16 November 2020. This approval satisfied the requirement under clause 186.223(2) that the Minister (or delegate) had approved the nomination. Consequently, the Tribunal directed that the primary applicant met this specific criterion.

The Tribunal remitted the visa applications for reconsideration by the Minister. The applications of the second named applicants, who were family members of the primary applicant, were to be determined in accordance with the outcome of the primary applicant's reconsidered application.