Nela (Migration)

The Administrative Appeals Tribunal considered an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream, made by an applicant nominated for a Bricklayer position. The dispute centred on whether the applicant had an approved nomination for the position that had not ceased.

The Tribunal was required to determine if the applicant met the criteria under clause 186.223 of Schedule 2 to the Regulations, specifically concerning the approval and continued availability of the nominated position. This involved assessing whether the nomination had been approved, not withdrawn, and if there was any adverse information concerning the nominator or associated persons. The Tribunal also had to consider if the position remained available to the applicant and if the visa application was lodged within six months of the nomination's approval.

The Tribunal found that while the employer did not have an approved nomination at the time of the Department's initial decision, the Tribunal itself had subsequently set aside the refusal and approved the nomination on 1 July 2020. Based on the evidence presented, including employer declarations, employment agreements, organisational charts, position descriptions, and PAYG payment summaries, the Tribunal was satisfied that all sub-clauses of clause 186.223 had been met. The Tribunal concluded that the matter should be remitted for reconsideration by the Department, with a direction that the applicant meets the specified criteria.