Anankitphanit (Migration)

This matter concerned an appeal by Anankitphanit (the first applicant) and a second applicant regarding Employer Nomination (Permanent) (Class EN) visas, specifically the Subclass 186 (Employer Nomination Scheme) visa under the Temporary Residence Transition stream. The dispute centred on whether the relevant nomination for the first applicant's visa had been approved, as required by migration regulations. The decision was made by Phoebe Dunn, a Member of the Tribunal.

The primary legal issue before the Tribunal was to determine whether the first applicant met the criteria under clause 186.223 of Schedule 2 to the Regulations, which requires, among other things, that the nominated position has been approved and has not been withdrawn. A secondary issue arose concerning the second applicant's eligibility, which depended on the first applicant being granted a Subclass 186 visa.

The Tribunal reasoned that the nomination for the position of Cook, made by 44 Little Bourke Street Pty Ltd (ATF Longrain Melbourne Trust), had indeed been approved by the Tribunal on 20 June 2019, setting aside the Department's earlier refusal. As this approval meant the first applicant met the requirements of cl.186.223(2), the Tribunal found that this criterion was satisfied. However, the Tribunal was unable to make a direction that the second applicant met their criterion, as the first applicant did not yet hold a Subclass 186 visa at the time of the decision.

Consequently, the Tribunal remitted the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration. The direction was that the first applicant meets criterion cl.186.223(2), while the second applicant's case was referred back to the Department for fresh consideration.