Yu (Migration)

The Administrative Appeals Tribunal considered a matter involving an applicant for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Direct Entry stream. The dispute centred on whether the applicant met the requirement for an approved nomination, as the Department had initially refused the nomination, which was subsequently reviewed by the Tribunal.

The primary legal issue before the Tribunal was to determine if there was an approved nomination for the applicant's position as Executive Chef. This involved assessing whether the nomination met the specific requirements of the Migration Regulations 1994, including the timing of the nomination, the identity of the employer, the approval of the nomination, and the absence of adverse information.

The Tribunal reasoned that for applicants in the Direct Entry stream, clause 186.233 of Schedule 2 to the Regulations requires the position to be the subject of an approved nomination. In this instance, the nominating employer, China Bar Buffet Pty Ltd, had its nomination for the Executive Chef position initially refused by the Department. However, upon review, the Tribunal set aside the Department's decision on 10 May 2018 and substituted a decision to approve the nomination under regulation 5.19(4). The Tribunal concluded that as the nomination had been approved, the applicant met the criterion specified in clause 186.233(3).

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant had met the criteria under clause 186.233(3) of Schedule 2 to the Regulations.