Cartier (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically a Subclass 186 (Employer Nomination Scheme) visa under the Temporary Residence Transition stream. The applicant's nominating employer, AJ Clark trading as McCulloch Suzuki, had initially applied for approval of a Motorcycle Mechanic position in respect of the applicant, who was a Subclass 457 visa holder. The Department of Immigration refused to approve this nomination. AJ Clark trading as McCulloch Suzuki then applied to the Tribunal for a review of that decision. The Tribunal, constituted by Member Nicola Findson, was required to determine whether the applicant met the criteria for the visa, particularly in light of the previous refusal to approve the nomination.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 186.223(2) of Schedule 2 to the Migration Regulations 1994, which requires that the nomination in relation to the position has been approved by the Minister and has not been subsequently withdrawn. The Tribunal also considered the broader requirements of clause 186.223, which include the nomination being for a specific position identified in the visa application, the position remaining available to the applicant, and the visa application being made within six months of the nomination's approval, as well as the absence of adverse information concerning the nominator or associated persons.

The Tribunal reasoned that on 13 November 2019, it had set aside the Department's decision not to approve the nomination and substituted a decision to approve it. As a result, the Tribunal found that the nomination in respect of the applicant had been approved and had not been withdrawn. Therefore, the applicant met the requirement of clause 186.223(2). Having made this finding, the Tribunal determined that the appropriate course of action was to remit the visa application to the Minister for reconsideration of the remaining criteria for the visa.