Zhao (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Direct Entry stream, for the first named applicant, who was nominated for the position of Sales and Marketing Manager. The dispute arose from the Department's refusal to approve the nomination, which was subsequently reviewed by the Tribunal. The Tribunal, constituted by Member Mary Sheargold, considered whether the requirements for an approved nomination had been met.

The primary legal issue before the Tribunal was whether the nomination for the Sales and Marketing Manager position had been approved, as required by clause 186.233 of the Migration Regulations. This clause, as applicable, stipulated several conditions, including that the nominated position must be the subject of an approved nomination application, that the nominator must be the prospective employer, that the nomination must not have been withdrawn, that there must be no adverse information known to Immigration or that such information could be disregarded, that the position must remain available to the applicant, and that the visa application must be made within six months of the nomination's approval.

The Tribunal found that the nominating employer, Grandville Homes Pty Ltd, had applied for approval of the nomination, which the Department initially refused. However, on review, the Tribunal set aside the Department's decision and substituted a decision to approve the nomination on 17 May 2019. Consequently, the Tribunal concluded that the first named applicant met the requirement under cl.186.233(3) as the relevant nomination had been approved.

Given these findings, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining criteria for the visa, including those pertaining to any secondary applicants. The Tribunal directed that the first named applicant meets the criteria under cl.186.233(3) of Schedule 2 to the Regulations.