Ceresara (Migration)

The Administrative Appeals Tribunal (AAT) considered a dispute concerning an Employer Nomination (Permanent) (Class EN) visa, specifically under the Temporary Residence Transition stream of the Subclass 186 visa. The primary applicant sought this visa, with the nomination for the position of Electronics Engineering Technician initially refused by the Department. The employer, Nine Mile Fresh Pty Ltd, sought review of this refusal. The AAT, in this instance, was tasked with determining whether the nomination criteria were met.

The central legal issue before the Tribunal was whether the nomination for the applicant's position satisfied clause 186.223 of the Migration Regulations. This clause requires, among other things, that the nomination has been approved, has not been withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons, that the position remains available to the applicant, and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. The Tribunal also had to consider the implications of its decision on the applications of the second and third named applicants, who applied as members of the primary applicant's family unit.

The Tribunal reasoned that while the nomination was not approved at the time of the initial departmental decision, it had subsequently been approved by the AAT on 26 January 2019, following a review of the employer's nomination. Based on the material provided by the employer during that review, the Tribunal was satisfied that all the requirements of clause 186.223 were met, including the absence of adverse information, the continued availability of the position, and the timely lodgement of the visa application. Consequently, the Tribunal concluded that a hearing was not necessary and exercised its power under section 360(2)(a) of the Migration Act 1958 (Cth) to find in favour of the applicant on this criterion.

The Tribunal remitted the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration by the Minister. It directed that the first named applicant meets the criteria under clause 186.223 for a subclass 186 visa. The applications of the second and third named applicants, being family members, would be determined based on the outcome of the primary applicant's application upon remittal to the Department.