Rahman (Migration)

This matter concerned an appeal by Mr. Rahman (the applicant) against a decision of the Administrative Appeals Tribunal (the Tribunal) regarding his Employer Nomination (Permanent) (Class EN) visa application, specifically under the Temporary Residence Transition stream of the Subclass 186 (Employer Nomination Scheme) visa. The core dispute revolved around whether the position of Accountant (General) to which his application related was the subject of an approved nomination.

The Tribunal was required to determine whether the applicant met the criteria set out in clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause outlines several requirements for a nominated position, including that it must be nominated in an application seeking to meet subregulation 5.19(3), the applicant must be identified as the holder of a Subclass 457 visa in relation to that nomination, and a specific declaration must have been made. Furthermore, the nomination must have been approved and not subsequently withdrawn, there must be no adverse information known to Immigration about the nominator or associated persons (or such information must be reasonably disregarded), the position must remain available to the applicant, and the visa application must have been lodged within six months of the nomination's approval.

The Tribunal found that the evidence before it indicated that the nomination had been approved by the Tribunal on merits review on 26 October 2020. It also found that the position remained available to the applicant, who was the incumbent, and that the visa application was made within the six-month timeframe after the nomination's approval. Consequently, the Tribunal concluded that clause 186.223 was met.

Based on these findings, the Tribunal remitted the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration by the Minister, with a direction that the first named applicant, Mr. Rahman, met the criteria under clause 186.223. The Tribunal also noted that the secondary applicants were members of the family unit of the first named applicant.