MUACCAD (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa under the direct entry stream. The applicant and their partner provided evidence that they intended to return to Sydney and that the applicant would recommence employment with Bowline Marine Pty Ltd. The Director of Bowline Marine Pty Ltd also provided a letter and gave evidence confirming that the position of Diver was still available to the applicant, who had previously been employed by the company for five years. The Tribunal considered these claims and evidence in its decision.

The primary legal issue before the Tribunal was whether the nominated position remained available to the applicant, a key criterion under clause 186.233 of Schedule 2 to the Migration Regulations. This clause requires that the position be the one nominated, that the employer is the nominator, that the nomination has been approved and not withdrawn, and that there is no adverse information or such information is reasonable to disregard. The Tribunal was also required to consider whether the visa application was made within six months of the nomination approval.

The Tribunal reasoned that the evidence presented, including the applicant's and their partner's statements about their intention to return to Sydney and recommence employment, coupled with the explicit confirmation from the employer that the position was still available and that the business had the financial capacity to employ the applicant, satisfied the criterion that the position was still available. The employer also highlighted the difficulty in finding skilled workers of the applicant's calibre and expressed eagerness for the applicant to rejoin the team. Based on these findings, the Tribunal concluded that the applicant met the criterion under clause 186.233(5).

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant meets the criterion specified in clause 186.233(5) of Schedule 2 to the Regulations. The Minister is to consider the remaining criteria for the visa.