DAS (Migration)

The Administrative Appeals Tribunal considered a matter concerning an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) Temporary Residence Transition stream, in relation to a position of Cook. The applicant, Faisal Azad Pty Ltd, had its nomination for the visa initially refused by a delegate of the Minister for the Department of Immigration and Border Protection on 15 May 2018. The company subsequently applied for a review of this decision with the Tribunal.

The primary legal issue before the Tribunal was whether the position to which the visa application related was the subject of an approved nomination, as required by clause 186.223 of Schedule 2 to the relevant regulations. This clause mandates that the nomination must have been approved, not subsequently withdrawn, and that certain conditions regarding adverse information, position availability, and the timing of the visa application relative to the nomination approval must be met.

The Tribunal reasoned that on 16 September 2021, it had set aside the delegate's refusal decision and substituted a new decision approving the nomination. Consequently, the Tribunal found that clause 186.223 was satisfied. Given this finding, the Tribunal determined that the appropriate course of action was to remit the visa applications to the Minister for reconsideration of the remaining visa criteria. The Tribunal directed that the first named applicant met the criteria under clause 186.223.