Bogahapitiye Lekamalage (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), specifically under the Temporary Residence Transition stream. The applicant sought review of a decision concerning their eligibility for this visa, with the primary dispute revolving around the approval of the nomination for the position of Automotive Electrician. The decision was made by Amanda Ducrou, a Member of the Tribunal.

The central legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of the Migration Regulations 1994, which pertains to the approval of a nomination for the visa. This clause requires, among other things, that the nominated position be approved, not subsequently withdrawn, that there is no adverse information known to the Department about the nominator or associated persons, that the position remains available to the applicant, and that the visa application was made within six months of the nomination's approval. A secondary issue concerned the applications of two other individuals who sought to be granted a Subclass 186 visa as family members of the primary applicant.

The Tribunal reasoned that the nomination made by Mr Nandi Seelanatha for the Automotive Electrician position had, in fact, been approved by the Tribunal on 1 November 2019, setting aside a prior departmental refusal. As this approval meant the nomination met the requirements of clause 186.223(2), the Tribunal concluded that the first named applicant satisfied this criterion. Regarding the family members' applications, the Tribunal noted that as the primary applicant did not yet hold a Subclass 186 visa at the time of the Tribunal's decision, the requirements of clause 186.311 could not be met. Consequently, the Tribunal remitted the applications for reconsideration, directing that the first named applicant meets clause 186.223(2) and referring the family members' applications to the Department for fresh consideration.