Udawatta (Migration)

The Administrative Appeals Tribunal (AAT) considered a migration matter involving an applicant seeking an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Employer Nomination Scheme, Temporary Residence Transition stream. The dispute centred on the approval of the nominated position of Painting Trades Worker.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause outlines several conditions for the nominated position, including that the nomination must have been approved and not withdrawn, that there must be no adverse information known to Immigration about the nominator or associated persons (or such information must be disregarded), that the position must still be available to the applicant, and that the visa application must have been made within six months of the nomination's approval.

The Tribunal found that the applicant's employer, Alec Epis Cleaning Services Pty Ltd ( & H Aforozis Family Trust), had made a nomination application on 29 January 2016. Although this application was initially refused, the Tribunal, on review, set aside the refusal and approved the nomination on 6 February 2019. The Tribunal was satisfied that all sub-criteria of clause 186.223 were met, including the absence of adverse information and the continued availability of the position. Consequently, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria. The application of the second applicant, who applied as a member of the first applicant's family unit, was to be determined by reference to the outcome of the first applicant's application.