Chatelain (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically a Subclass 186 (Employer Nomination Scheme) visa under the Temporary Residence Transition stream. The dispute centred on whether the applicant's nominated position as a Chef was the subject of an approved nomination. The decision was made by Terrence Baxter, a Member of the Tribunal.

The primary legal issue before the Tribunal was to determine if the applicant met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994, which pertains to the approval of a nomination for a Subclass 186 visa. This clause requires, among other things, that the nominated position be approved, not subsequently withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available to the applicant, and that the visa application was made within six months of the nomination's approval.

The Tribunal reasoned that the nominator had initially applied to have the Chef position approved on 31 October 2018, which was subsequently refused by the Department of Home Affairs. Following a review sought by the nominator, the Tribunal, on 8 May 2023, set aside the Department's refusal and substituted a decision to approve the nomination. Consequently, the Tribunal found that clause 186.223(2) was satisfied. The Tribunal also noted that the second and third named applicants applied as members of the family unit of the primary applicant.

Given these findings, the Tribunal remitted the visa application for reconsideration by the Minister, directing that the first named applicant met the criteria under clause 186.223(2) of Schedule 2 to the Regulations. The applications of the second and third named applicants would also be determined upon this remittal.