Rea (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa under the Direct Entry stream, where the applicant was nominated for the position of Landscape Gardener. The applicant sought review of a decision concerning their eligibility for the visa. The Tribunal, constituted by Michelle East, was required to determine whether the applicant was the subject of an approved nomination that met the relevant legislative criteria.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 186.233 of Schedule 2 to the Migration Regulations 1994. This clause outlines several requirements for an approved nomination, including that the nominated position must be the one subject to the visa application, the employer must be the nominator, the nomination must have been approved and not withdrawn, there must be no adverse information known to the Department about the nominator or associated persons (or such information must be reasonable to disregard), the position must remain available, and the visa application must have been made within six months of the nomination's approval.

The Tribunal found that the applicant's nomination by DJ’s Facilities Pty Ltd for the Landscape Gardener position met all the requirements of clause 186.233. It noted that the Department had initially refused the nomination, but the Tribunal had previously set aside that refusal and substituted a decision approving the nomination. The Tribunal was satisfied that the nomination had not been withdrawn, the position remained available, and the visa application was lodged within the prescribed timeframe. Furthermore, no adverse information was presented. Consequently, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria, with a direction that the applicant met clause 186.233.