DHILLON (Migration)

This matter concerned an appeal by an applicant for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream. The applicant sought review of a decision concerning their eligibility for the visa, specifically in relation to an approved nomination.

The primary legal issue before the Tribunal was whether the applicant met the requirements of subregulation 186.223(2) of the Migration Regulations 1994, which pertains to the approval of a nomination for the visa. This subregulation requires that the nominated position be the subject of an approved nomination application that identifies the visa applicant, that the nomination has not been withdrawn, that there is no adverse information known to the Department about the nominator or associated persons (or such information is reasonable to disregard), that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 applicant met the criteria under subregulation 186.223(2). This conclusion was reached after considering evidence presented by the applicant and the nominator, and importantly, after noting that a related nomination application had been reviewed and approved by the Tribunal on 19 November 2018. The Tribunal was satisfied that the nomination was approved and not withdrawn, that no adverse information existed, that the position of hairdresser remained available to the applicant under a written employment contract, and that the visa application was lodged within the prescribed six-month period following the nomination's approval. The Tribunal also found that the secondary applicants were members of the primary applicant's family unit and met the relevant criteria.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration. The direction was that the first named applicant met the criteria under cl.186.223(2), and the second and third named applicants met the criteria under cl.186.311 of Schedule 2 to the Regulations.