Wijesuriya (Migration)

The Administrative Appeals Tribunal considered an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream, in relation to a position of Hairdresser. The applicant sought review of a decision concerning the approval of the nomination for this visa.

The primary legal issue before the Tribunal was whether the nomination for the Subclass 186 visa had been approved, as required by clause 186.223 of Schedule 2 to the Migration Regulations. This clause necessitates that the nominated position be the subject of an approved nomination application that identifies the visa applicant, and that the nomination has not been subsequently withdrawn. Additionally, the Tribunal considered whether there was any adverse information concerning the nominator or associated persons, or if such information could be disregarded, and whether the position remained available to the applicant within the prescribed timeframe.

The Tribunal found that the applicant met criterion 186.223(1) as the nominated position was identified in the relevant application and related to the applicant's Subclass 457 visa. Crucially, referencing its prior decisions in cases 1714900 and 1727921, the Tribunal determined that the sponsorship bar previously imposed on the nominator had been varied and that adverse information could be disregarded due to durable changes in management practices and ownership. Consequently, the Tribunal concluded that the nomination had been approved and had not been withdrawn, satisfying clauses 186.223(2) and (3). The Tribunal also confirmed that the second, third, and fourth applicants satisfied clause 186.311(b).

The Tribunal remitted the applications for reconsideration, directing that the first applicant met the criteria under clause 186.223, and the other applicants satisfied clause 186.311(b).