Smith (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding a Subclass 186 Employer Nomination Scheme visa application under the Direct Entry stream. The applicant sought review of a decision to refuse their visa application, which was based on the assessment of an approved nomination for the position of Other Sports Coach or Instructor.

The primary legal issue before the Tribunal was whether the nomination for the applicant's position met the requirements of clause 186.233 of Schedule 2 to the Migration Regulations. This clause outlines several criteria, including that the nominated position must be the one subject to an approved nomination, that the applicant must be identified in the nomination application, that the employer must be the nominator, that the nomination must have been approved and not withdrawn, and that there must be no adverse information concerning the nominator or associated persons, or such information must be disregarded. Additionally, the position must remain available, and the visa application must be lodged within six months of the nomination's approval.

The Tribunal found that the applicant satisfied the requirements of clause 186.233. It relied on its previous findings from a nomination application, which had been set aside and substituted with an approval for the position of Other Sports Coach or Instructor. The Tribunal was satisfied that the approved position corresponded to the one in the visa application and that the applicant was identified in the nomination. Furthermore, the Tribunal concluded that the employer was the nominator and that the nomination had been approved and met the criteria regarding adverse information and availability.

Consequently, the Tribunal remitted the visa applications to the Minister for reconsideration, with a direction that the first applicant met the criteria specified in clause 186.233. The Minister was to consider the remaining criteria for the grant of the Subclass 186 visa.