Case Background

The applicant had lodged for a subclass 186 Employer Nomination Scheme (Permanent) (Class EN) visa and the Nomination application was refused.

Aside from the obvious refusal reasonings, there had also been underlying issues, including the business being a small business with less than 5 employees and the nominee being the owner of the business at the same time. Having the owner being the nominee really raises issues on the genuineness of the appointed position.

Case Deliberations

• The legal status of nominator and the continuous and active operation of business.
• Substantial commercial evidence to support the operation of business and to demonstrate the existence of business outweigh the administrative oversight.
• The occurrence of having forgotten to pay for company renewal had been a once-off mistake which had been corrected through re-instatement on immediate basis.
• The previous ENS application had been submitted before the caveats came in. Hence, having less than 5 employees is not mandatory at time of application.
• The genuineness of the position could be demonstrated through what the nominee’s work involves on daily basis and the extent of its contribution to the overall profitability of the business.

AAT Outcome

The AAT had set aside the department’s decision and substituted a decision in approving the nomination application.