SHELADIYA (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa, Direct Entry stream. The applicant, Ms. Sheladiya, was the subject of a nomination application made by a sponsor. The primary dispute revolved around whether the applicant was the subject of an approved nomination, as required by clause 186.223 of Schedule 2 to the Migration Regulations 1994. The Administrative Appeals Tribunal (AAT) considered the matter following a decision by a delegate of the Minister to refuse the nomination.

The legal issue before the Tribunal was whether the applicant met the criteria under clause 186.223, specifically concerning the requirement for an approved nomination. This clause outlines several conditions, including that the nomination must have been approved and not subsequently withdrawn, that there must be no adverse information known to the Department about the nominator or associated persons (or such information must be disregarded), that the nominated position must still be available to the applicant, and that the visa application must have been made within six months of the nomination's approval.

The Tribunal reasoned that the delegate's decision to refuse the nomination had been set aside. A subsequent decision had been made to approve the nomination. The Tribunal found that the nomination had not been withdrawn, the position remained available to the applicant, and the visa application was lodged within the prescribed timeframe. Consequently, the Tribunal concluded that the applicant met the criteria under clause 186.223.

Accordingly, the Tribunal remitted the application for a Subclass 186 visa to the Minister for reconsideration, with a direction that the applicant meets the criteria specified in clause 186.223. The Minister was to consider the remaining criteria for the visa.