Rai (Migration)

This matter concerned a review application by the applicant, Rai, regarding a Subclass 186 Employer Nomination Scheme visa. The core dispute revolved around the financial capacity of the nominator to continue employing the applicant for the required minimum period. The Department had initially refused the nomination application on 24 October 2017, as the delegate was not satisfied that the nominator possessed the necessary financial capacity.

The Tribunal was required to determine whether the applicant was the subject of an approved nomination, specifically addressing the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause mandates that the nominated position must have been approved, not subsequently withdrawn, and that there must be no adverse information known to Immigration concerning the nominator or associated persons, or that such information is reasonable to disregard. Furthermore, 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 nominator had met the requirements of regulation 5.19(3), including the training benchmarks. Crucially, on 13 June 2019, the Tribunal set aside the original decision and approved the nomination, finding that clause 186.223 was satisfied. The Tribunal also determined that there was no adverse information concerning the applicant or associated persons, that the position remained available, and that the visa application was made within the prescribed timeframe.

Consequently, the Tribunal remitted the visa applications to the Minister for reconsideration. The direction was that the first-named applicant met the criteria under clause 186.223, and the second-named applicants met the criteria under clause 186.311, for a Subclass 186 visa.