ARIATE (Migration)

This matter concerned applications for Employer Nomination (Permanent) (Class EN) visas, Subclass 186 (Employer Nomination Scheme), specifically the Temporary Residence Transition stream. The primary applicant, Mr. Domingo Ariate, sought this visa, with his family members applying as members of his unit. The dispute arose after the Department of Immigration and Border Protection refused the nomination and consequently the visa applications. The Administrative Appeals Tribunal (AAT) was tasked with reviewing the decision regarding the nomination's approval.

The central legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223(2) of Schedule 2 to the Migration Regulations 1994. This clause mandates that the nominated position must have been approved and not subsequently withdrawn, that there must be no adverse information known to Immigration about the nominator or associated persons (or such information must be reasonably disregarded), that the position must remain available to the applicant, and that the visa application must have been lodged no more than six months after the nomination was approved.

The Tribunal found that the nominating employer, Ramirez Catering Services Pty Ltd, had initially had its nomination for the position of Cook refused by the Department. However, following a review by the AAT in a separate proceeding (AAT Case No. 1807293), the Department's decision was set aside, and the nomination was approved on 22 December 2020. Based on this, the Tribunal concluded that the applicant satisfied clause 186.223(2). The applications of the other family members were contingent on the outcome of Mr. Ariate's application.

Consequently, the Tribunal remitted the visa applications to the Minister for reconsideration, with a specific direction that the first named applicant, Mr. Domingo Ariate, had met the criteria stipulated in clause 186.223(2) of Schedule 2 to the Regulations. The remaining criteria for the visas were to be considered by the Department.