Baena Lora (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 sought review of a decision concerning the nomination for the position of Building Associate. The Tribunal, constituted by Jade Murphy, was required to determine whether the position in question was the subject of an approved nomination.

The primary legal issue before the Tribunal was whether the applicant met the criteria set out in clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause requires, among other things, that the nominated position be identified in an application for approval made in relation to a Temporary Residence Transition stream visa, that the nomination has been approved and not withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons (or such information can be disregarded), that the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 reasoned that a previous decision by a delegate of the Minister refusing the nomination had been set aside on review, and a new decision had been made approving the nomination. As the nomination had now been approved and not withdrawn, and given that the Tribunal found the other sub-clauses of cl 186.223 to be met, the Tribunal concluded that this criterion was satisfied. Consequently, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria.