Chaikijkosi (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal concerning an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) in its Temporary Residence Transition stream. The applicant sought review of a decision relating to their visa application, which was linked to an approved nomination for the occupation of Café or Restaurant Manager by Haoyu Pty Ltd. The Tribunal was tasked with determining whether the applicant was the subject of an approved nomination for the visa.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of Schedule 2 to the relevant regulations, which pertains to the approval of a nomination for a Subclass 186 visa. This clause mandates that the nominated position must be the subject of an approved nomination that identifies the visa applicant, has not been withdrawn, and for which there is no adverse information known to Immigration, or such information is reasonable to disregard. Furthermore, the position must remain available to the applicant, and the visa application must have been lodged within six months of the nomination's approval.

The Tribunal found that on 5 February 2020, it had set aside the Department's decision to refuse the nomination application and substituted a decision approving the nomination. Consequently, at the time of the Tribunal's decision, an approved nomination in respect of the applicant existed, satisfying the requirements of clause 186.223. Given these findings, the Tribunal determined that the appropriate course of action was to remit the visa applications for reconsideration by the Minister, with a direction that the first named applicant met the criteria under clause 186.223. The Tribunal also considered that the second named applicant's visa application should be reconsidered in light of the findings regarding the first named applicant.