Chang Kee (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa by a hairdresser, and related applications by secondary applicants. The primary dispute revolved around whether the nominated position met the requirements of clause 186.233 of Schedule 2 to the Migration Regulations 1994. The Department had initially refused the nomination, but the Migration Review Tribunal (MRT) subsequently set aside that decision and approved the nomination. The MRT was then required to determine the visa applicant's eligibility based on this approved nomination.

The central legal issue before the Tribunal was whether the primary applicant met the criteria for a Subclass 186 visa, specifically clause 186.233, which pertains to the approval of a nomination. The Tribunal also considered the eligibility of secondary applicants, who sought to be granted the visa as members of the primary applicant's family unit. This required determining if the primary applicant held the Subclass 186 visa granted on the basis of satisfying the primary criteria.

The Tribunal reasoned that as the nomination had been approved by the MRT, the primary applicant satisfied clause 186.233(3). However, the Tribunal could not make a direction that the secondary applicants met their criteria because, at the time of the decision, the primary applicant did not yet hold the Subclass 186 visa. Consequently, the Tribunal remitted the applications for reconsideration. The Tribunal directed that the primary applicant met clause 186.233(3), and referred the cases of the secondary applicants back to the Department for fresh consideration.