Devamittage (Migration)

This matter concerned applications for Employer Nomination (Permanent) (Class EN) visas, specifically the Subclass 186 (Employer Nomination Scheme) visa under the Temporary Residence Transition stream, for a Pastrycook. The primary dispute revolved around whether the applicant's nominated position had been approved, which is a prerequisite for the visa grant. The decision was made by Phoebe Dunn, a Member of the Tribunal.

The central legal issue before the Tribunal was to determine if the requirements of clause 186.223 of the Migration Regulations 1994 had been met, particularly concerning the approval of the nomination for the applicant's position. This clause mandates that the nominated position must have an approved nomination that has not been withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available, and that the visa application was lodged within six months of the nomination's approval. A secondary issue concerned whether a second applicant, identified as a member of the primary applicant's family unit, met the criteria for the visa, given the primary applicant's visa status.

The Tribunal reasoned that while the initial nomination application was refused, a subsequent review by the Tribunal had set aside that refusal and substituted a decision approving the nomination. This meant that the requirement under clause 186.223(2) was satisfied. However, the Tribunal found it could not make a determination regarding the secondary applicant's eligibility because the primary applicant did not, at the time of the Tribunal's decision, hold a Subclass 186 visa.

Consequently, the Tribunal remitted the applications for reconsideration. It directed that the first named applicant be considered to have met criterion 186.223(2) of Schedule 2 to the Regulations. The case of the secondary applicant was referred back to the Department for fresh consideration.