Duggan (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa, Temporary Residence Transition stream, by an applicant whose nominated position as a bricklayer was the subject of a review by the Administrative Appeals Tribunal. The Tribunal, constituted by Member Nicola Findson, was required to determine whether the applicant met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the nominated position met the specific criteria outlined in clause 186.223, which included requirements relating to the nomination application, the applicant's identification as a Subclass 457 visa holder, the approval and non-withdrawal of the nomination, the absence of adverse information concerning the nominator, the continued availability of the position, and the timeliness of the visa application relative to the nomination approval. The Tribunal also considered the effect of its previous decision to set aside the Department's refusal to approve the nomination.

The Tribunal reasoned that the evidence before it satisfied all the subclauses of clause 186.223. It found that the position was correctly nominated, the applicant was identified as a Subclass 457 visa holder in relation to that nomination, and the necessary declaration was made. Furthermore, the Tribunal was satisfied that the nomination had been approved, not withdrawn, the position remained available, and the visa application was lodged within the six-month timeframe after nomination approval. Crucially, the Tribunal also determined that there was no adverse information known to Immigration about the nominator or associated persons, or that any such information was reasonable to disregard.

Consequently, the Tribunal concluded that the applicant met the requirements of clause 186.223. As a result, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant had satisfied this specific criterion for the Subclass 186 visa.