TRAN (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Direct Entry stream, for a marketing specialist. The applicant's nominating employer, Bruce Henderson Architects Pty Ltd, had initially applied for approval of the nominated position, which was refused by the Department of Home Affairs. The employer then applied to the Tribunal for a review of this decision. The Tribunal, constituted by Sheridan Aster, set aside the Department's decision and substituted it with a decision to approve the nomination.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.233 of Schedule 2 to the Migration Regulations 1994, specifically concerning the nominated position. This clause requires, among other things, that the position be the subject of an approved nomination, that the nominator be the prospective employer, that the nomination has not been withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons (or such information is reasonable to disregard), and that the position remains available to the applicant. The Tribunal also considered the timing of the visa application relative to the nomination approval.

The Tribunal reasoned that since it had set aside the Department's refusal and approved the nomination on 15 June 2023, the requirement for an approved nomination was met. It was satisfied that the nomination had not been withdrawn and that there was no adverse information concerning the nominator or associated persons. Furthermore, based on the evidence provided, the Tribunal was satisfied that the position remained available to the applicant and that the visa application was made within six months of the nomination approval. Consequently, clause 186.233 was deemed to be met.

Given these findings, the Tribunal remitted the visa applications for reconsideration by the Minister, with a direction that the first named applicant met the requirements of clause 186.233. The application of the second named applicant, who applied as a member of the family unit of the first applicant, was to be determined by reference to the outcome of the first applicant's application upon remittal.