Alberto (Migration)

This matter concerned an appeal by Alberto (the applicant) against a decision to refuse an Employer Nomination (Permanent) (Class EN) visa, specifically under the Temporary Residence Transition stream of Subclass 186. The applicant had been nominated for a position as a Civil Engineering Draftsperson. The Tribunal, constituted by George Hallwood, considered the applications of both the primary and secondary applicants.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Subclass 186 visa, particularly concerning the availability of the nominated position. The Tribunal also had to determine the fate of the secondary applicants' visa applications, which were contingent on the primary applicant's success.

The Tribunal reasoned that the applicant met the criteria outlined in cl.186.223 of Schedule 2 to the Regulations. Specifically, it found that the nominated position was still available to the applicant, a key requirement under subclause 186.223(4). The Tribunal noted that the secondary applicants' visa applications were refused solely because the primary applicant's application was refused, and therefore, their applications should be reconsidered in light of the outcome of the primary applicant's application following remittal.

Consequently, the Tribunal remitted the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration. The direction was that the first named applicant met the specified criteria for a Subclass 186 visa. The Tribunal also directed that the secondary applicants' visa applications be determined by reference to the outcome of the first named applicant’s application following remittal to the department.