Bisignano (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa, Temporary Residence Transition stream, for a Restaurant Manager. The applicant sought review of a decision by the Department of Immigration which had refused the underlying nomination. The Administrative Appeals Tribunal, constituted by Member Phoebe Dunn, considered whether the nomination had been approved and met the relevant criteria.

The primary legal issue before the Tribunal was whether the nomination for the applicant's position as Restaurant Manager had been approved, as required by clause 186.223(2) of Schedule 2 to the Migration Regulations 1994. This clause mandates that the Minister must have approved the nomination, and it must not have been subsequently withdrawn. Further considerations under this clause include the absence of adverse information concerning the nominator or associated persons, the continued availability of the position, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that the Department's initial refusal of the nomination was erroneous. It noted that a prior decision by the Tribunal on 17 August 2020 had set aside the Department's refusal and substituted a decision approving the nomination. Consequently, the Tribunal concluded that the applicant met the requirements of clause 186.223(2). However, the Tribunal was unable to make a direction regarding the second applicant's eligibility under clause 186.311, as the primary applicant did not hold a Subclass 186 visa at the time of the Tribunal's decision.

The Tribunal remitted the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration. It directed that the first named applicant be considered to meet the criteria under clause 186.223(2) of Schedule 2 to the Regulations. The case of the second named applicant was referred back to the Department for fresh consideration.