Santoso (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa, Direct Entry stream, made by an applicant who was the subject of an approved nomination by their employer, David Locke Associates (Australia) Pty Ltd. The applicant's employer nomination application had been refused, but this refusal was set aside on review by the Tribunal. The Tribunal was required to determine whether the applicant had an approved nominating sponsor and position in which to be engaged in employment.

The primary legal issue before the Tribunal was whether the applicant met the criteria under clause 186.233 of Schedule 2 to the Migration Regulations 1994. This clause, as applicable, required that the nominated position be the subject of an approved nomination application in the Direct Entry stream, that the applicant be identified in relation to the position (for nominations made on or after 1 July 2017), that the employer be the nominator, that the nomination be approved and not withdrawn, that there be no adverse information known to Immigration about the nominator or associated persons, or that such information be disregarded, that the position remain available to the applicant, and that the visa application be made within six months of the nomination approval.

The Tribunal found that on 27 November 2019, it had approved the nomination in respect of the applicant under regulation 5.19. Consequently, the Tribunal concluded that the applicant met clause 186.233 of Schedule 2 to the Regulations. Given this finding, the Tribunal determined that the appropriate course was to remit the visa application to the Minister for reconsideration of the remaining criteria for the visa.