CHOTIKASATHIRA (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Temporary Residence Transition stream of the Subclass 186 (Employer Nomination Scheme). The applicant sought review of a decision concerning the approval of a nominated position, which was a prerequisite for the visa. The case was heard by Lilly Mojsin, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223(2) of Schedule 2 to the Regulations, which mandates that the position to which the visa application relates must be the subject of an approved nomination. This clause further requires that the applicant be identified in the nomination and that the nomination itself has been approved.

The Tribunal found that the employer's nomination, in which the applicant was identified as the relevant Subclass 457 visa holder, had initially been refused by the Department. However, the employer subsequently applied to the Tribunal for a review of this refusal. On 1 August 2018, the Tribunal set aside the Department's decision and substituted a decision to approve the nomination. Consequently, the Tribunal determined that the applicant had satisfied the criterion under cl.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 criteria for the Subclass 186 visa. The Tribunal directed that the applicant met the criterion specified in cl.186.223(2).