Dhiman (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) visa, Temporary Residence Transition stream. The dispute arose when the employer's nomination was initially refused by a delegate, but this refusal was subsequently set aside on review by the Tribunal. The Tribunal was then required to consider the remaining criteria for the visa, including the eligibility of a second applicant as a member of the family unit.

The primary legal issue before the Tribunal was whether the nomination for the position of Cook (ANZSCO 351411) had been approved, as required by clause 186.223 of the Migration Regulations 1994. A further issue was whether the second named applicant satisfied the criteria for being a member of the family unit of the primary applicant, as stipulated by clause 186.311.

The Tribunal reasoned that the employer's nomination, initially refused on 14 March 2019, was approved by the Tribunal on 25 November 2019, thereby satisfying clause 186.223(2). Consequently, the Tribunal directed that the first named applicant met this criterion. However, the Tribunal could not make a direction regarding the second named applicant's eligibility as a family member because, at the time of the Tribunal's decision, the primary applicant did not yet hold a Subclass 186 visa. Therefore, the Tribunal remitted the applications for reconsideration, directing that the first named applicant met the nomination approval criteria and referring the case of the second named applicant back to the Department for fresh consideration.