ANG (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 (Employer Nomination Scheme) temporary residence transition stream. The applicant's visa application had been refused because the related nomination application was also refused, meaning the applicant did not meet the requirements of clause 186.223(2) of the Regulations, which mandates an approved nomination. The applicant sought review of this refusal. The decision was made by Phoebe Dunn, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for an approved nomination under clause 186.223(2) of the Regulations. This clause requires that the nomination has been approved and not subsequently withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons, that the nominated position remains available to the applicant, and that the visa application was made within six months of the nomination approval. The Tribunal was required to determine if these conditions were satisfied, particularly in light of a prior decision to refuse the nomination.

The Tribunal reasoned that the applicant's Subclass 186 visa application was refused because the nomination application was initially refused, thus failing to meet clause 186.223(2). However, the nominator had applied for review of the nomination refusal, and on 26 February 2021, the Tribunal set aside the Department's decision and substituted a decision approving the nomination. Consequently, as the nomination had now been approved, the Tribunal found that clause 186.223(2) was met.

Given that the Tribunal had determined the applicant met the criteria under clause 186.223(2), the appropriate course of action was to remit the visa application to the Minister for reconsideration of the remaining criteria for the Subclass 186 visa. The Tribunal directed that the applicant be considered to meet clause 186.223(2) of Schedule 2 to the Regulations.