SHEENA ROSE BABU (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal concerning an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Direct Entry stream. The primary applicant, Sheena Rose Babu, sought this visa, with a second applicant applying as a member of her family unit. The core dispute revolved around whether the requirements of clause 186.233 of the Migration Regulations 1994 were met, specifically concerning the approval of the employer's nomination.

The Tribunal was required to determine if the requirements of clause 186.233 were satisfied. This clause mandates that the position be the subject of an approved nomination, that the applicant be identified in relation to the position (for nominations made on or after 1 July 2017), that the employer who made the nomination is the one who will employ the applicant, that the nomination has been approved and not withdrawn, that there is no adverse information known to the Department about the nominator or associated persons, or that any such information is reasonable to disregard, that the position remains available to the applicant, and that the visa application was made within six months of the nomination's approval.

The Tribunal reasoned that while the initial nomination by Eyenus Pty Ltd was refused by the Department, the Administrative Appeals Tribunal had subsequently set aside that decision and approved the nomination on 23 August 2018. Based on this subsequent approval, the Tribunal was satisfied that the nomination had been approved, had not been withdrawn, and that no adverse information was known to the Department. Furthermore, evidence indicated the position remained available and the visa application was lodged within the six-month timeframe following the nomination's approval. Consequently, the Tribunal found that clause 186.233 was met.

Given these findings, the Tribunal remitted the visa applications for reconsideration by the Minister. The direction was that the first named applicant meets the criteria under clause 186.233 for the Subclass 186 visa. The application of the second named applicant, as a family unit member, would be determined by reference to the outcome of the first applicant's application.