Stumbo (Migration)

This matter concerned an appeal by an applicant for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Direct Entry stream, for the position of cook. The primary dispute revolved around whether the applicant met the requirements of clause 186.233 of Schedule 2 to the Migration Regulations 1994, specifically concerning the nomination of the position. The Tribunal was required to determine if the nominated position was still available to the applicant and if all other conditions of clause 186.233 had been satisfied.

The Tribunal's reasoning focused on a detailed examination of clause 186.233, which outlines several criteria for a valid nomination. These include the position being the subject of an approved nomination, the nominator being the prospective employer, the nomination not being withdrawn, the absence of adverse information or the reasonableness of disregarding it, the position remaining available, and the visa application being lodged within six months of the nomination's approval. The Tribunal found that the position was indeed the same as that in the nomination application, the nominator was the employer, and the nomination, initially refused by the Department, had been approved by the Tribunal on 3 May 2023. The Tribunal was satisfied that adverse information could be disregarded, the nomination had not been withdrawn, the position remained available, and the visa application was lodged within the prescribed timeframe.

Consequently, the Tribunal concluded that the applicant met the requirements of clause 186.233. The Tribunal therefore remitted the visa application to the Minister for reconsideration of the remaining visa criteria. The application of a second applicant, who applied as a member of the first applicant's family unit, was also remitted for reconsideration in accordance with the outcome of the primary applicant's application.