Yang (Migration)

This matter concerned an appeal by an applicant for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), direct entry stream. The applicant's nominating employer, Topend Building, 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 primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.233 of the Migration Regulations, specifically concerning the nomination of the position. This clause requires, among other things, that the nominated position be approved, not subsequently withdrawn, that the employer be the nominator, that there be no adverse information known to Immigration about the nominator or associated persons, that the position remains available to the applicant, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that on 15 December 2020, it had set aside the Department's decision and substituted a decision to approve the nomination. As this approval had been granted and the nomination had not been withdrawn, and given the Tribunal's satisfaction regarding the absence of adverse information and the continued availability of the position, the applicant met the requirements of clause 186.233. The Tribunal also confirmed that the visa application was made within the prescribed timeframe after the nomination approval.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria. The applications of secondary applicants, who applied as members of the first applicant's family unit, were also remitted for determination by reference to the outcome of the primary applicant's application.