Collins (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream. The applicant sought review of a decision by the Department of Immigration which had refused to approve the employer nomination. The Administrative Appeals Tribunal, constituted by Member Denise Connolly, considered the applicant's claims and the evidence presented.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994, which pertains to the approval of an employer nomination for the Temporary Residence Transition stream. This clause requires, among other things, that the nominated position is the subject of an approved nomination that has not been withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available to the applicant, and that the visa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 found that the employer nomination made by Fixteam Pty Ltd, in which the applicant was identified as a relevant 457 visa holder, had initially been refused by the Department. However, following an application for review by Fixteam Pty Ltd, the Tribunal had set aside the Department's decision on 8 November 2018 and substituted a decision to approve the nomination. Consequently, the Tribunal concluded that the applicant met the requirement of clause 186.223(2) as the relevant nomination had been approved.

Given this finding, the Tribunal determined that the appropriate course of action was to remit the visa application to the Minister for reconsideration of the remaining criteria for the Subclass 186 visa. The Tribunal directed that the applicant be considered to meet criterion 186.223(2).