Charaniya (Migration)

This matter concerned an appeal by an applicant for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), specifically under the temporary residence transition stream. The core dispute revolved around whether the applicant had an approved nomination for a position with his employer that had not ceased. The decision was made by Jane Bell of the Tribunal.

The Tribunal was required to determine whether the applicant met the criteria under clause 186.223 of the Migration Regulations 1994, which governs the requirements for an approved nomination in the Temporary Residence Transition stream. This involved assessing whether the nominated position was the subject of an approved nomination that identified the visa applicant, had not been withdrawn, and that there was no adverse information known to the Department concerning the nominator or associated persons, or that such information was reasonable to disregard. Furthermore, the Tribunal had to consider whether the position remained available to the applicant and if the visa application was lodged within six months of the nomination's approval.

The Tribunal found that while the employer did not have an approved nomination at the time of the Department's initial decision, a subsequent review application resulted in the Tribunal setting aside the refusal and substituting a decision approving the nomination. Based on the evidence presented, including the employer's confirmation of continued availability of the position, an employment agreement, an organisational chart, a position description, and recent pay documents, the Tribunal was satisfied that all the requirements of clause 186.223 had been met. The Tribunal noted that the applications of other named family members would be determined by reference to the outcome of the primary applicant's application upon remittal.

The Tribunal remitted the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration by the Department, with a direction that the first named applicant met the criteria for a Subclass 186 visa, specifically clause 186.223 of Schedule 2 to the Regulations.