Burch (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 (Employer Nomination Scheme) Temporary Residence Transition stream. The applicant, a holder of a Subclass 457 visa, had their employer's nomination for the position of Plumber initially refused by the Department. The employer sought review of this decision before 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 outlines several criteria for an approved nomination, including that the nomination must have been approved and not subsequently withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons, that the nominated position remains available to the applicant, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that the applicant satisfied clause 186.223(2) because, on 27 August 2020, the Tribunal had set aside the Department's refusal and substituted a decision to approve the nomination under subregulation 5.19(3). As this criterion was met, the Tribunal determined that the appropriate course was to remit the visa application to the Minister for reconsideration of the remaining criteria for the visa.