Trgo (Migration)

This matter concerned an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) under the direct entry stream. The applicant's nominating employer, Intermost, had initially applied for approval of a Civil Engineer position for the applicant. The Department of Home Affairs refused to approve this nomination. The employer then sought review of that decision by the Tribunal. The Tribunal, presided over by Sheridan Lee, ultimately set aside the Department's refusal and substituted 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 the Migration Regulations concerning the nominated position. This clause, as applicable, required that the nominated position be the subject of an approved nomination, that the nominator be the prospective employer, that the nomination had not been withdrawn, that there was no adverse information concerning the nominator or associated persons, that the position remained available to the applicant, and that the visa application was made within six months of the nomination's approval. The Tribunal also considered the applications of the second, third, and fourth named applicants, who applied as family members of the first applicant.

The Tribunal reasoned that since it had previously set aside the Department's refusal and approved the nomination, the requirement for an approved nomination was met. It was satisfied that the nomination had not been withdrawn, that no adverse information was known to Immigration regarding the nominator or associated persons, and that the position remained available. Furthermore, the Tribunal found that the visa application was made within the six-month timeframe after the nomination approval. Consequently, the Tribunal concluded that clause 186.233 was satisfied.

Given these findings, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria. The applications of the second, third, and fourth named applicants were to be determined by reference to the outcome of the first applicant's application upon remittal.