EL Ouaed (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Temporary Residence Transition stream of the Subclass 186 (Employer Nomination Scheme) visa. The applicant's employer, Magic Touch Hairdressing Pty Ltd, had lodged a nomination for a Hair/Beauty Salon Manager position. The dispute arose when the initial nomination was refused by a delegate of the Minister for Immigration and Border Protection. The applicant sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the position to which the visa application related was the subject of an approved nomination, as required by clause 186.223 of Schedule 2 to the relevant regulations. This clause outlines several conditions, including that the nomination must have been approved and not subsequently withdrawn, that there must be no adverse information known to Immigration about the nominator or associated persons, that the position must remain available to the applicant, and that the visa application must be made within six months of the nomination's approval.

The Tribunal reasoned that on 16 October 2020, it had set aside the Department's earlier decision refusing the nomination and substituted a new decision approving it. Consequently, the Tribunal found that the nomination had been approved and not withdrawn, satisfying the core requirement of clause 186.223. The Tribunal determined that it was appropriate to remit the visa application to the Minister for reconsideration of the remaining visa criteria, having found that the applicant met the nomination criterion.