Cetinkaya (Migration)

This matter concerned an appeal to the Tribunal regarding the refusal of an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream. The primary applicant sought this visa, with secondary applicants also included in the application. The core dispute revolved around whether the applicant satisfied the requirements of clause 186.223 of Schedule 2 to the Regulations, specifically concerning the approval of the employer's nomination.

The Tribunal was required to determine if the applicant met the criteria under clause 186.223, which necessitates that the employer's nomination has been approved and not withdrawn, that there is no adverse information concerning the nominator or associated persons, that the nominated position remains available, and that the visa application was made within six months of the nomination's approval. Additionally, the Tribunal had to consider the eligibility of the secondary applicants, who were refused on the basis of not being members of the family unit of a primary Subclass 186 visa holder.

The Tribunal found that the employer's nomination, initially refused by a delegate, had been approved by the Tribunal on review. This meant that the primary applicant now satisfied clause 186.223(2) of the Regulations. However, as the primary applicant did not yet hold a Subclass 186 visa, the secondary applicants' applications could not be finalised. Consequently, the Tribunal remitted the applications for reconsideration, directing that the primary applicant met clause 186.223(2), and that the secondary applicants' applications be considered by the Department for their eligibility based on the subsequent determination of the primary applicant's application.