MIGRATION - Employer Nomination (Permanent) (Class EN) visa - Subclass 186 (Employer Nomination Scheme) - genuine nomination - can be adequately determined in the absence of the parties - nomination approved and not withdrawn - position still available - visa application made within 6 months - decision under review remitted

Administrative Review Tribunal Act 2024 (Cth), ss 9, 106

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, r 186.233

1. This is an application for review of a decision made by a delegate of the Minister on 3 September 2024 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant applied for the visa on 24 July 2023. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.
4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Carpenter (ANZSCO: 331212).
5. The delegate refused to grant the visa because the nomination lodged by LKD BUILDING SUPPLIES PTY LTD, being the nomination referred to in paragraph 186.233(1) of Schedule 2 to the Regulations was refused.
6. Having received updated information not previously before the delegate, the Tribunal is able to find wholly in favour of the applicant and the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding. The Tribunal is satisfied that each of the requirements contained in s 106(3)(a) - (c) of the Administrative Review Tribunal Act 2024 (Cth) ('ART Act') are satisfied and, consistently with the objective in s 9 of the ART Act, it is appropriate to determine this application in the absence of the parties.
7. The applicant was represented in relation to the review.
8. For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter be remitted for reconsideration.

1. The issue in the present case is whether the position is the subject of an approved nomination.

1. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.
2. In addition, this criterion also requires that:
   • the person who will employ the applicant is the person who made the nomination
   • the nomination has been approved and has not been subsequently withdrawn
   • there is no 'adverse information' known to Immigration about the person who made the nomination or a person 'associated with' that person (within the meaning of reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information
   • the position is still available to the applicant, and
   • the visa application was made no more than six months after the nomination of the position was approved.
3. The applicant was nominated by LKD BUILDING SUPPLIES PTY LTD for a position in the occupation of Carpenter (ANZSCO 331212). The position is the same as the position nominated in the reg 5.19 nomination application and the employer is the nominator.
4. The nomination was initially refused by the Department because the Department found reg 5.19(4) was not met. LKD BUILDING SUPPLIES PTY LTD applied to the Tribunal for a review of that decision and on 9 December 2025 the Tribunal remitted that application to the Department for reconsideration (Tribunal no. 2411279). On 15 December 2025 the Tribunal received a copy of the Department's notice dated 15 December 2025 approving the nomination of LKD BUILDING SUPPLIES PTY LTD.
5. The position of Carpenter in the application is the one that was the subject of the declaration that was required to be made as part of the current visa application. Accordingly, the requirements of cl 186.233(1) are met.
6. The nominator will employ the applicant. The nomination has now been approved and has not subsequently been withdrawn. Accordingly, the requirements of cl 186.233(2), (3) and (4) are met.
7. There is no evidence suggesting otherwise, and the Tribunal is therefore satisfied that there is no adverse information known to Immigration about the person who made the nomination or a person 'associated with' that person.
8. The Tribunal is satisfied that the nomination has not been withdrawn and that the position is still available to the applicant. The Tribunal is also satisfied that the visa application was not made more than six months after the nomination of the position was approved. Accordingly, the requirements of cl 186.233(4A) are met.
9. The nominator confirmed that the position is still available to the applicant at the hearing on 27 May 2025. Accordingly, the requirements of cl 186.233(5) are met.
10. As the visa application was made on 24 July 2023 and the nomination of the position was approved on 15 December 2025, the Tribunal finds that the visa application was made no more than six months after the nomination of the position was approved. Accordingly, the requirements of cl 186.233(6) are met.
11. For the reasons above, the requirements of cl 186.233 are met.
12. Given these findings, the appropriate course is to set aside the decision under review and remit the visa application to the Minister to consider the remaining criteria for the visa.

1. The Tribunal sets aside the decision under review and remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:
   • cl 186.233 of Schedule 2 to the Regulations.

Representative for the Applicant: Ms Mi Jung Park (MARN: 955026)

186.233 (1) The position to which the application relates is the position:

(a) nominated in an application for approval that:

(i) identifies the applicant in relation to the position; and

(ii) is made in relation to a visa in a Direct Entry stream; and

(iii) seeks to meet the requirements of subregulation 5.19(10); and

(b) in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

(2) The person who will employ the applicant is the person who made the nomination.

(4) The nomination has not subsequently been withdrawn.

(a) there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

(b) it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

(5) The position is still available to the applicant.

(6) The application for the visa is made not more than 6 months after the Minister approved the nomination.