Asif (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) visa, Temporary Residence Transition stream. The applicant, a holder of a Subclass 457 visa, had their nominating employer's application for approval of the position of Cook 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. This clause requires, among other things, that the nomination has been approved by the Minister and has not been subsequently withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons, that the position remains available to the applicant, and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 nominating employer's application for approval of the Cook position in respect of the applicant had been approved by the Tribunal on 29 March 2019, setting aside the Department's refusal. As this approval meant the applicant met the requirements of clause 186.223(2), the Tribunal concluded that the matter should be remitted to the Minister for reconsideration of the remaining criteria for the primary applicant's visa. Furthermore, as the second applicant's visa application was based on being a member of the family unit of the primary applicant, their application was also remitted for full reconsideration.