Okumu (Migration)

This matter concerned an application for Employer Nomination (Permanent) (Class EN) visas, specifically a Subclass 186 (Employer Nomination Scheme) visa. The primary applicant sought review of a decision concerning the approval of a nomination, while the second applicant applied as a member of the family unit. The case came before the Tribunal, presided over by Terrence Baxter.

The central legal issue before the Tribunal was whether there was an approved nomination for the applicant, as required by clause 186.223 of Schedule 2 to the Regulations. This involved considering whether the nominated position met specific criteria, including its availability, the timing of the visa application relative to the nomination approval, and the absence of adverse information concerning the nominator or associated persons. The Tribunal also had to determine the relevance and weight of information provided under a section 376 certificate, which related to allegations of false information in the original nomination application.

The Tribunal reasoned that the information provided under the section 376 certificate was not relevant to the question of whether there was an approved nomination and therefore placed no weight on it. The Tribunal found that the requirements of clause 186.223(2) were met, noting that the nominator's application to have the position of Accountant approved with the applicant as nominee was initially refused, but this refusal was subsequently set aside by the Tribunal, and the nomination was approved. The Tribunal also confirmed that the position was still available to the applicant and that the visa application was made within the prescribed timeframe after the nomination approval.

Consequently, the Tribunal remitted the applications for reconsideration. It directed that the first named applicant meets criterion cl 186.223(2) of Schedule 2 to the Regulations. The second applicant's application, being dependent on the first, would also be determined upon remittal to the Department for reconsideration.