Shrestha (Migration)

The Administrative Appeals Tribunal considered the case of Shrestha, concerning an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream. The applicant sought review of a decision relating to their eligibility for this visa, specifically concerning an approved nomination for the position of Contract Administrator.

The central legal issue before the Tribunal was whether the applicant had an approved nomination for the position with their employer that had not ceased to be effective. This required the Tribunal to determine if the requirements of clause 186.223 of the Migration Regulations 1994 were met, including whether the nominated position was the subject of an approved nomination, if the nomination had been withdrawn, if there was adverse information concerning the nominator, if the position remained available, and if the visa application was lodged within the prescribed timeframe after nomination approval.

The Tribunal reasoned that while the employer did not have an approved nomination at the time of the Department's initial decision, the Tribunal itself had subsequently set aside the refusal of the nomination application and substituted a decision approving it. Based on the evidence presented, including the employer's documentation and the applicant's employment agreement, the Tribunal was satisfied that all criteria under clause 186.223 had been met. This included the nomination being approved and not withdrawn, no adverse information being known to Immigration, the position remaining available to the applicant, and the visa application being lodged within six months of the nomination approval.

Consequently, the Tribunal remitted the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration by the Department, with a direction that the first named applicant, Shrestha, meets the criteria for a Subclass 186 visa, specifically clause 186.223. The applications of the second and third named applicants were to be determined by reference to the outcome of Shrestha's application upon remittal.