SHI (Migration)

This matter concerned an appeal by SHI (the first applicant) and their accompanying family member (the second applicant) against a decision concerning a Subclass 186 Employer Nomination (Permanent) (Class EN) visa, Direct Entry stream. The primary dispute revolved around whether the nominated position of Sales and Marketing Manager met the requirements of the Migration Regulations 1994. The case was heard by Member Sheridan Lee of the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the nominated position was the subject of an approved nomination, as stipulated by cl.186.233 of the Migration Regulations. This involved assessing whether the employer had made a valid nomination, whether that nomination had been approved and not subsequently withdrawn, whether there was any adverse information concerning the nominator or associated persons, and whether the position remained available to the applicant within the prescribed timeframe.

The Tribunal found that the employer's nomination for the Sales and Marketing Manager position had initially been refused by the Department of Immigration and Border Protection. However, following a review application, the Tribunal had previously set aside that refusal and substituted a decision to approve the nomination on 27 April 2018. The Tribunal was satisfied that the nomination had not been withdrawn, no adverse information was known to the Department, the position remained available, and the visa application was made within six months of the nomination's approval. Consequently, the Tribunal concluded that the criterion under cl.186.233 was met.

Given these findings, the Tribunal remitted the visa applications to the Minister for reconsideration, directing that the first applicant met the criteria under cl.186.233. The second applicant's application, being dependent on the first applicant's, would be determined by reference to the outcome of the remitted application.