Neupane (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) visa under the temporary residence transition stream. The applicant's nominating employer, Shubhadip Pty Ltd, had an application for approval of a nomination for the position of Cook refused by the Department. The Administrative Appeals Tribunal (the Tribunal) was required to review this refusal.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of Schedule 2 to 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nomination application that identifies the visa applicant, and that the nomination must have been approved, not withdrawn, and that the position remains available to the applicant. Furthermore, the visa application must be made within six months of the nomination's approval, and there must be no adverse information known to the Department about the nominator or associated persons, or any such information must be reasonable to disregard.

The Tribunal found that the nomination had been approved by the Tribunal on 8 February 2022, setting aside the Department's earlier refusal. It was satisfied that the nomination had not been withdrawn, the position remained available, and the visa application was lodged within the prescribed six-month period. Crucially, the Tribunal also found no adverse information known to the Department concerning the nominator or associated persons. Consequently, the Tribunal concluded that the applicant met the requirements of clause 186.223.

The Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant had satisfied the criteria under clause 186.223. The Minister was to consider the remaining criteria for the grant of the Subclass 186 visa.