CHAVEZ (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) visa under the Temporary Residence Transition stream. The applicant sought review of a decision concerning her eligibility for this visa. The Tribunal, constituted by Susan Reece Jones, was required to determine whether the applicant met the criteria for an approved nomination.

The central legal issue before the Tribunal was whether the nomination made by CARDIOFIRST PTY LTD in relation to the applicant's visa application had been approved and met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations. This clause outlines several conditions, including that the nominated position must be the subject of an approved nomination, that the nomination has not been withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons, that the position remains available to the applicant, and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 while the Department had initially refused the employer nomination on 24 January 2018, this decision was subsequently set aside by the Tribunal on 9 October 2020, with a substituted decision approving the nomination under regulation 5.19(3). Consequently, the Tribunal found that the applicant now met the requirements of clause 186.223(2) as the relevant nomination had been approved.

Given this finding, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining eligibility criteria. The decision directed that the applicant be considered to meet the requirements of clause 186.223(2) of Schedule 2 to the Regulations.