Zhu (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically a Subclass 186 Employer Nomination Scheme visa. The applicant's nominating employer, Australia Deloraine Dairy Pty Ltd, had initially applied to the Department for approval of the nominated position of Corporate General Manager. The Department refused this nomination, leading the employer to seek review by the Tribunal. The Tribunal, presided over by Member Cathrine Burnett-Wake, was tasked with determining whether the relevant nomination had been approved.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Subclass 186 visa, specifically concerning the approval of the nominated position. The Tribunal considered the requirements of clause 186.223(2) of Schedule 2 to the Migration Regulations 1994, which mandates that the position be the subject of an approved nomination that has not been withdrawn, among other conditions. The Tribunal also noted the specific requirements for nominations made on or after 1 July 2017, including that the applicant must be identified in the nomination and that the employer making the nomination must be the prospective employer.

The Tribunal found that on 19 June 2018, it had set aside the Department's decision to refuse the nomination and substituted a decision to approve the nomination under regulation 5.19(4). As the relevant nomination had been approved, the Tribunal concluded that the applicant met the requirement under clause 186.223(2). Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant had met this specific criterion.