Balasooriya (Migration)

This matter concerned an appeal by an applicant for a Subclass 186 Employer Nomination visa, specifically under the Temporary Residence Transition stream. The primary dispute revolved around the refusal of the applicant's employer's nomination for a position. The Administrative Appeals Tribunal (AAT) was tasked with reviewing this refusal.

The central legal issue before the Tribunal was whether the applicant's employer had satisfied the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause outlines several conditions that must be met for a nomination to be approved, including that the nominated position must be the subject of an approved nomination application, that the nomination has not been withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available to the applicant, and that the visa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.

The Tribunal found that the applicant's employer, Mr. Paranavithana Wimaladharma, had made an application to have the position of cook approved with the applicant as the nominee. Although this nomination was initially refused by the Department, the Tribunal had previously set aside that decision and substituted an approval of the nomination. Based on this prior decision and a review of departmental records, the Tribunal was satisfied that all the conditions stipulated in clause 186.223 were met. Consequently, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria, noting that the second applicant, as a member of the family unit, would have her application determined based on the outcome of the primary applicant's remitted application.