Baranosooriya Patabandige (Migration)

The Administrative Appeals Tribunal (AAT) considered a migration matter concerning an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 Temporary Residence Transition stream for a Cook. The dispute arose from the refusal of the visa application, which the applicant sought to have reviewed by 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. This clause pertains to the nomination of a position for the visa, requiring, among other things, that the nominated position be the subject of an approved nomination, that the nominator is the prospective employer, that there is no adverse information known to the Department of Immigration, and crucially, that the position remains available to the applicant.

The Tribunal reasoned that it had previously set aside a Departmental decision and approved the nomination for the position of Cook. Based on the evidence before it, the Tribunal was satisfied that the approved position was the same as that nominated and declared in the visa application, and that the applicant was identified in the nomination. Furthermore, the Tribunal found that the nominator was indeed the prospective employer and that the visa applicant now met the requirements of clause 186.223(2).

Consequently, the Tribunal found that the visa applicant satisfied the criteria specified in clause 186.223. The Tribunal therefore remitted the visa application to the Minister for reconsideration of the remaining visa criteria, with a direction that the applicant meets the requirements of clause 186.223.