Arya (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal concerning an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream. The primary applicant sought review of a decision that their employer's nomination for the position of Café or Restaurant Manager had not been approved, which consequently impacted the visa applications of the second and third applicants, who were family members.

The Tribunal was required to determine whether the nomination for the applicant's position as a Café or Restaurant Manager had been approved, as required by clause 186.223 of the Migration Regulations 1994. This clause mandates that the nominated position must be the subject of an approved nomination application that identifies the visa applicant, and that the nomination has been approved and not withdrawn, among other conditions.

The Tribunal found that while the employer, Hookens Pty Ltd, did not have an approved nomination at the time of the initial delegate's decision, the Tribunal itself had subsequently set aside the refusal of the nomination and substituted a decision to approve it on 22 July 2019. Based on this, the Tribunal was satisfied that all conditions under clause 186.223 were met, including the employer's continued employment of the applicant, the approval and non-withdrawal of the nomination, the absence of adverse information, the continued availability of the position, and that the visa application was made within six months of the nomination's approval.

Consequently, the Tribunal remitted the visa applications for reconsideration by the Minister, with a direction that the first-named applicant satisfied clause 186.223. The applications of the second and third applicants, being family unit members, would be determined by reference to the outcome of the primary applicant's reconsidered application.