Reilly (Migration)

The Administrative Appeals Tribunal considered the case of Mr Steven James Reilly, who sought an Employer Nomination (Permanent) (Class EN) visa, specifically under the Temporary Residence Transition stream of the Subclass 186 visa. The dispute centred on whether Mr Reilly had an approved sponsored position for the nominated occupation of Marketing Specialist (ANZSCO Code: 225113) as required by the Migration Regulations 1994. The nominating sponsor, Search Rank Results Pty Limited, had its employer nomination refused by the Department of Home Affairs on two occasions.

The Tribunal was required to determine if the applicant met the criteria for the Subclass 186 visa, particularly concerning the validity of the employer nomination. This involved assessing whether the Department's refusals of the employer nomination were correct, and whether the applicant had demonstrated continuous employment and met the requirements of Regulation 5.19(3) of the Migration Regulations. The Tribunal also noted the sponsor's previous application for review and the failure to respond to a request for information.

The Tribunal affirmed the decision not to grant the visa. It noted that the Department had refused the employer nomination on the basis that the nominee was offshore since January 2017, failing to meet Regulation 5.19(3)(d)(i), and subsequently on the grounds of the sponsor's financial capability. Furthermore, the Tribunal observed that during the review of the nominating sponsor's application, a response to a request for information was not provided by the due date, leading the Tribunal to affirm the delegate's decision. The Tribunal also referenced the Minister's personal, non-compellable power under s 351 of the Migration Act 1958 to substitute a more favourable decision in the public interest, outlining the types of circumstances that might warrant such consideration.