Biag (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal regarding the refusal of an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), specifically under the temporary residence transition stream. The primary dispute centred on whether the applicant was the subject of an approved position nomination as required by clause 186.223(2) of the relevant regulations.

The Tribunal was required to determine if the applicant met the criteria under clause 186.223(2), which mandates that the position to which the visa application relates must be the subject of an approved nomination that identifies the visa applicant. This criterion necessitates that the nomination has been formally approved by the Minister.

The Tribunal noted that the nomination lodged by the applicant's sponsor had initially been refused by a delegate of the Minister. However, a differently constituted Tribunal had subsequently set aside this refusal and substituted a decision approving the nomination. Consequently, the Tribunal found that the applicant now met the requirement of being the subject of an approved nomination. Given this finding, the Tribunal determined that the appropriate course was to remit the visa applications for reconsideration by the Minister, with a direction that the first applicant met the criterion under clause 186.223(2).