Bista Basnet (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa under the Temporary Residence Transition stream. The primary applicant sought to be employed as a Hairdresser, with the nomination initially refused. The nominator applied for a review of this refusal. The decision under review was made by Phoebe Dunn, a Member of the Tribunal.

The central legal issue before the Tribunal was whether the nomination for the applicant's position as a Hairdresser had been approved, as required by clause 186.223(2) of Schedule 2 to the Migration Regulations 1994. The Tribunal also considered whether the second and third named applicants, who were family members of the primary applicant, satisfied clause 186.311, which requires them to be members of the family unit of a primary applicant who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria.

The Tribunal reasoned that on 16 September 2021, it had overturned the delegate's decision to refuse the nomination and substituted a decision approving it. Consequently, the Tribunal found that the primary applicant met the requirements of clause 186.223(2). However, the Tribunal was unable to make a direction that the second and third named applicants met clause 186.311 because, at the time of the Tribunal's decision, the primary applicant did not yet hold the Subclass 186 visa.

The Tribunal remitted the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration. It directed that the first named applicant meets clause 186.223(2) of Schedule 2 to the Regulations. The case for the second and third named applicants was referred to the Department to consider their applications afresh.