CHENG (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), specifically the Temporary Residence Transition stream. The applicant sought review of a decision concerning their eligibility for the visa. The Tribunal, constituted by Wan Shum, was required to consider whether the applicant met the criteria for the visa, particularly clause 186.223 of Schedule 2 to the Regulations.

The primary legal issue before the Tribunal was whether the nominated position met the requirements of clause 186.223. This clause mandates that the position must be the subject of an approved nomination that identifies the visa applicant, has not been withdrawn, and for which there is no adverse information known to Immigration concerning the nominator or associated persons, or such information is reasonable to disregard. Furthermore, the position must remain available to the applicant, and the visa application must have been lodged no more than six months after the nomination was approved.

The Tribunal found that the applicant had provided details of a relevant nomination for the position of Accountant, identifying them as a Subclass 457 visa holder. The nomination was approved by the Tribunal on 19 June 2019 and had not been withdrawn. The applicant was employed by the nominator, and the position remained available. Crucially, the visa application was made before the nomination was approved, meaning it was not lodged more than six months after approval. The Tribunal also noted the absence of any known adverse information regarding the nominator.

Consequently, the Tribunal concluded that the applicant met the criteria under clause 186.223. The Tribunal remitted the visa application to the Minister for reconsideration of the remaining eligibility criteria, directing that the applicant had met the requirements of clause 186.223.