Dsouza (Migration)

This matter concerned an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) visa under the Temporary Residence Transition stream. The applicant sought review of a decision concerning the nomination for the position of Customer Service Manager. The Tribunal, presided over by P. Maishman, was tasked with determining whether the applicant met criterion cl.186.223 of Schedule 2 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the nominated position satisfied the requirements of cl.186.223. This involved assessing whether the nomination application identified the visa applicant, whether the nomination had been approved and not withdrawn, whether there was any adverse information concerning the nominator or associated persons, whether the position remained available, and whether the visa application was lodged within six months of the nomination's approval. The Tribunal also considered the specific requirements of subregulation 5.19(3) and the declaration made under paragraph 1114B(3)(d).

The Tribunal found that the applicant's visa application related to the position nominated by The Trustee for the Alphi Family Trust, and that the applicant was identified as the holder of a subclass 457 visa in relation to that nomination. It was established that the nomination application was made on 20 February 2017, and following an initial refusal by the Department, the Tribunal had set aside that refusal and approved the nomination on 13 June 2022. The Tribunal was satisfied that the nomination had not been withdrawn, the position remained available, and the visa application was made within the prescribed six-month period. Furthermore, the Tribunal found no adverse information known to Immigration regarding the nominator or associated persons.

Consequently, the Tribunal concluded that the applicant met criterion cl.186.223. The Tribunal remitted the visa applications for reconsideration by the Minister, with the specific direction that the first applicant had met the requirements of cl.186.223. The applications for the other named applicants were also remitted for reconsideration in accordance with this direction.