Yang (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal concerning a Subclass 186 Employer Nomination Scheme visa, Direct Entry stream. The applicant's employer, Aus Fertilizer Pty Ltd, had nominated the applicant for the position of Corporate General Manager. The Department initially refused the nomination, but this decision was later set aside by the Tribunal on review, and the nomination was approved.

The primary legal issue before the Tribunal was whether the applicant met the criteria under cl.186.233 of Schedule 2 to the Migration Regulations 1994. This clause requires, among other things, that the nominated position be approved and not withdrawn, that there be no adverse information known to the Department about the nominator or associated persons, that the position remains available to the applicant, and that the visa application was made no more than six months after the nomination was approved.

The Tribunal found that the nomination had been approved and not withdrawn, and that there was no adverse information. It was also satisfied that the position remained available and that the employer was the nominator. Crucially, the Tribunal noted that the visa application was made before the nomination was approved, and therefore, the requirement that the application be made no more than six months after approval was met.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant met the criteria under cl.186.233.