Scholz (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) visa under the Direct Entry stream. The applicant sought review of a decision concerning the nomination for the position of Marketing Specialist. The core dispute revolved around whether the applicant met the requirements of clause 186.233 of Schedule 2 to the Migration Regulations 1994, which pertains to the approval of employer nominations.

The Tribunal was required to determine if the applicant satisfied clause 186.233, which outlines several conditions for a valid nomination. These include that the nominated position must be the subject of an approved nomination application, the nominator must be the prospective employer, the nomination must not have been withdrawn, there must be no adverse information known to Immigration concerning the nominator or associated persons (or such information must be reasonable to disregard), 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 reasoned that while the Department had initially refused the employer nomination, a subsequent review by the Tribunal had set aside that decision and substituted an approval of the nomination on 10 July 2020. As the nomination had now been approved and the applicant was identified in relation to it, the Tribunal found that the applicant met the requirements of clause 186.233(2). Consequently, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria.