Arif (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 nominating employer, Diadem DDM Pty Ltd, had its nomination for the applicant's position as an industrial designer refused by the Department. The employer sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994, which pertains to the approval of a nomination for the visa. This clause requires, among other things, that the nominated position be the subject of an approved nomination that has not been withdrawn, that there is no adverse information known to the Department about the nominator or associated persons, that the position remains available to the applicant, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that the employer's nomination, initially refused by the Department, had been approved by the Tribunal on 8 October 2018, substituting the Department's decision under subregulation 5.19(3). As this approval meant the applicant met the criterion in clause 186.223(2), the Tribunal determined that the appropriate course was to remit the visa application to the Minister for consideration of the remaining eligibility criteria.