PATEL (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 (Employer Nomination Scheme) Temporary Residence Transition stream. The applicant, identified as the first named visa applicant, sought review of a decision concerning the approval of a nomination made by BHF Couriers Express Pty Ltd. The case was heard by Susan Reece Jones of the Tribunal.

The central legal issue before the Tribunal was whether the nomination met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations. This clause mandates that the nominated position must be the subject of an approved nomination that identifies the visa applicant, has not been withdrawn, and is supported by a declaration made in the visa application. Furthermore, it requires that there be no adverse information known to Immigration about the nominator or associated persons, or that such information can be disregarded, that the position remains available to the applicant, and that the visa application was lodged within six months of the nomination's approval.

The Tribunal found that the Department had initially refused the nomination on 25 July 2019. However, upon review by the Tribunal on 11 November 2023, the Department's decision was set aside, and the nomination was approved. Consequently, the Tribunal concluded that the first named applicant met the requirements of clause 186.223(2) as the nomination had now been approved.

Given this finding, the Tribunal remitted the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration. The direction was that the first named applicant meets the criteria under clause 186.223 of Schedule 2 to the Regulations, and the remaining criteria for this applicant, as well as the entire application of the second named visa applicant, should now be reconsidered by the Minister.