FANG (Migration)

This matter concerned an appeal before the Tribunal regarding an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) visa under the Temporary Residence Transition stream. The primary applicant sought this visa based on a nomination for the position of Massage Therapist, which had initially been refused by the Department but was subsequently approved by the Tribunal on review. The dispute also involved a secondary applicant, a family member of the primary applicant.

The central legal issue before the Tribunal was whether the nomination for the primary applicant's visa had been approved, as required by clause 186.223 of Schedule 2 to the Migration Regulations. Additionally, the Tribunal had to consider whether the secondary applicant met the criteria for a Subclass 186 visa, specifically clause 186.311, which requires being a member of the family unit of a primary applicant who holds the visa.

The Tribunal reasoned that clause 186.223(2) mandates that the Minister has approved the nomination. In this instance, the Tribunal itself had set aside the Department's refusal and substituted a decision approving the nomination on 24 July 2019. Consequently, the Tribunal found that the primary applicant met the requirements of clause 186.223(2). However, regarding the secondary applicant, the Tribunal noted that at the time of its decision, the primary applicant did not yet hold a Subclass 186 visa, meaning the secondary applicant could not satisfy clause 186.311.

The Tribunal remitted the applications for reconsideration. It directed that the primary applicant met the criteria under clause 186.223(2). For the secondary applicant, the Tribunal referred the case back to the Department for fresh consideration.