Sefat (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 primary applicant, a Building Associate, sought review of a decision concerning their visa application. The Tribunal, constituted by Susan Trotter, was tasked with determining whether an approved nomination existed in respect of the first-named applicant.

The central legal issue before the Tribunal was whether the requirements of clause 186.233 of Schedule 2 to the Migration Regulations 1994 were met, particularly concerning the existence of an approved nomination for the position of Building Associate. This involved assessing whether the nominated position was the subject of an approved nomination application, whether the nominator was the prospective employer, if the nomination had been approved and not withdrawn, if there was any adverse information known to Immigration about the nominator or associated persons, if the position remained available, and if the visa application was lodged within six months of the nomination's approval.

The Tribunal found that Bistoon Construction Pty Ltd, the prospective employer, had made a nomination application for the first-named applicant as a Building Associate in May 2016. Although this nomination was initially refused in January 2017, the Tribunal, on review in October 2018, set aside the refusal and substituted a decision to approve the nomination. The Tribunal was satisfied that the nominator was the prospective employer, the nomination was approved and not withdrawn, the position remained available, and the visa application was made within the requisite six-month period. Regarding adverse information, the Tribunal noted a past sponsorship bar imposed on Bistoon Construction Pty Ltd in 2014 due to underpayment of wages to the applicant, but observed that this bar had been lifted following a previous Tribunal decision and the underpayment had been rectified. The Tribunal concluded, based on departmental records, that no adverse information was currently known to Immigration about Bistoon Construction Pty Ltd or associated persons.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the first-named applicant met the criteria under clause 186.233. The applications of the other applicants, who were family members of the first-named applicant, would be determined by reference to the outcome of the remitted application.