Sawaddee (Migration)

This matter concerned a review by the Administrative Appeals Tribunal (AAT) of a decision to refuse an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream. The applicant, Miss Budsaneeyarat Sawaddee, had her visa application refused because her employer's nomination for the position of Café or Restaurant Manager was initially refused by the Department of Immigration.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of the Migration Regulations 1994, specifically concerning the approval of the nomination. This clause requires that the nominated position be the subject of an approved nomination that identifies the visa applicant, that the nomination has not been withdrawn, that there is no adverse information about the nominator or associated persons, that the position remains available, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that the employer, Kew Group Pty Ltd, had its nomination for the Café or Restaurant Manager position initially refused by the Department. However, following a review by the AAT, the Department's decision was set aside, and the nomination was approved on 23 January 2020. The Tribunal was satisfied that all the conditions under clause 186.223 were met: the position was correctly nominated and identified the applicant, the nomination was approved and not withdrawn, no adverse information was known to Immigration, the position remained available to the applicant, and the visa application was made on 17 March 2017, which was within the six-month timeframe after the nomination's approval.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant met the criteria under clause 186.223 of Schedule 2 to the Migration Regulations 1994.