Tjhen (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Direct Entry stream, for the position of Cook. The applicant, Tjhen, sought review of a decision to refuse the nomination. The Tribunal, constituted by Alan McMurran, was required to determine whether the Minister had approved the nomination in accordance with the relevant legislative criteria.

The primary legal issue before the Tribunal was whether the nomination met the requirements of clause 186.233 of Schedule 2 to the Migration Regulations 1994. This clause outlines several conditions for an approved nomination, including that the nominated position must be identified in the application, the nominator must be the prospective employer, the nomination must have been approved and not withdrawn, there must be no adverse information known to Immigration about the nominator or associated persons, or any such information must be reasonable to disregard, the position must remain available, and the visa application must be made within six months of the nomination's approval.

The Tribunal found that on 7 May 2021, it had set aside the original refusal and substituted a decision approving the nomination, thereby satisfying clause 186.233(1). It further found that the applicant was identified in relation to the nominated position and that Mamak Chatswood Pty Ltd, the nominator, was the prospective employer and the nomination had not been withdrawn. Crucially, the Tribunal determined that while adverse information existed concerning a director of the nominator, it was reasonable to disregard this information, and similarly, it was reasonable to disregard any adverse information affecting the applicant due to their association with that director and as an employee of the nominator.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant met the criteria under clause 186.233 of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the visa.