DAO (Migration)

This matter concerned an application for review of a decision concerning Employer Nomination (Permanent) (Class EN) visas, specifically under the Subclass 186 (Employer Nomination Scheme) Temporary Residence Transition stream. The applicant sought review of the refusal of their visa application, which stemmed from the initial refusal to approve the employer's nomination for the position of Finance Broker. The Administrative Appeals Tribunal (AAT) was tasked with determining whether the applicant met the relevant criteria for the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 186.223(2) of Schedule 2 to the Migration Regulations 1994, which pertains to the approval of an employer's nomination. Additionally, the Tribunal had to consider its jurisdiction in relation to the second and third applicants, given their physical location at the time of the application. This involved an examination of section 347 of the Migration Act 1958, which dictates who may apply for a review of certain decisions and the requirement of being physically present within the migration zone.

The Tribunal found that the first applicant met the requirements of clause 186.223(2) because the nomination, initially refused by the Department, was subsequently approved by the Tribunal on review. This approval meant that the nomination had been approved and not withdrawn, and the other conditions within the clause were satisfied. However, regarding the second and third applicants, the Tribunal determined it lacked jurisdiction. Department records indicated they were offshore when the primary decision and the application for review were lodged, thus failing to meet the physical presence requirement stipulated in section 347 of the Act.

Consequently, the Tribunal remitted the visa application for reconsideration by the Minister. The reconsideration was to proceed with the finding that the first applicant had satisfied clause 186.223(2). The Tribunal explicitly stated it did not have jurisdiction in relation to the second and third named applicants.