Chan (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa, Temporary Residence Transition stream, by an applicant whose nominating employer was Chinatown Cinema Corporation Pty Ltd. The core dispute revolved around the approval of the employer's nomination for the position of Marketing Specialist. The Administrative Appeals Tribunal, constituted by Member Mary Sheargold, was tasked with reviewing the decision concerning the nomination's approval.

The primary legal issue before the Tribunal was whether the nomination for the Marketing Specialist position met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations. This clause, as applicable, stipulated that the nomination must have been approved, not subsequently withdrawn, and that certain conditions regarding adverse information, position availability, and the timing of the visa application relative to the nomination approval must be satisfied. The Tribunal also considered whether the applicant met this criterion, which was a prerequisite for the visa application itself.

The Tribunal reasoned that the employer's nomination had previously been approved by the Tribunal on 15 May 2019, setting aside the Department's refusal. This prior approval meant that the requirement under clause 186.223(2) was met. Consequently, the Tribunal found that the applicant satisfied this specific criterion for the Subclass 186 visa.

Given these findings, the Tribunal determined that the appropriate course of action was to remit the visa application to the Minister for reconsideration of the remaining eligibility criteria. The Tribunal directed that the applicant be considered to have met clause 186.223(2) of Schedule 2 to the Regulations.