BAGGA (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream, for a Cook. The primary applicant's nomination, made by Trabden Pty Ltd, was initially refused by the Department. The nominator sought review of this decision, and on 29 May 2019, the Tribunal set aside the Department's refusal and substituted a decision approving the nomination. The primary applicant had applied for the visa based on this nomination. The secondary applicants were included in the application as members of the primary applicant's family unit.

The central legal issue before the Tribunal was whether the relevant nomination 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 This clause mandates that the nominated position must be the subject of an approved nomination that has not been withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available to the applicant, and that the visa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. A further issue arose concerning the eligibility of the secondary applicants, who were required to be members of the family unit of a primary applicant who held a Subclass 186 visa granted on the basis of satisfying the primary criteria.

The Tribunal reasoned that, following its decision to approve the nomination on 29 May 2019, the primary applicant met the requirements of clause 186.223(2). Consequently, the Tribunal directed that the primary applicant met this criterion. However, the Tribunal found itself unable to direct that the secondary applicants satisfied their criterion because, at the time of the Tribunal's decision, the primary applicant did not yet hold a Subclass 186 visa.

Accordingly, the Tribunal remitted the applications for reconsideration. It directed that the primary applicant met clause 186.223 of Schedule 2 to the Regulations. The Tribunal referred the case of the secondary applicants to the Department for fresh consideration of their applications.