Baraket (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) Temporary Residence Transition stream. The primary dispute revolved around the approval of the nomination for the position of Program or Project Administrator. The Administrative Appeals Tribunal, constituted by Cathrine Burnett-Wake, was tasked with reviewing the decision concerning the nomination.

The central legal issue before the Tribunal was whether the nomination for the applicant's position met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause, as applicable, stipulated that the nomination must have been approved, not subsequently withdrawn, and that certain conditions regarding adverse information, position availability, and the timing of the visa application relative to the nomination approval must be satisfied. The Tribunal also had to consider the applications of the second, third, and fourth named visa applicants, who were family members of the primary applicant.

The Tribunal reasoned that the employer's nomination for the Program or Project Administrator position had been approved by the Department on 23 October 2018, following a review by the Tribunal which set aside the Department's earlier refusal. As this approval meant the applicant met the requirements of cl.186.223(2), the Tribunal determined that the appropriate course was to remit the visa application for reconsideration by the Minister. This reconsideration was to include the remaining criteria for the primary applicant's visa and, consequently, the applications of the family unit members.