Flamuraj (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 Employer Nomination Scheme visa under the Temporary Residence Transition stream. The applicant's employer, Infinity Design (Vic) Pty Ltd, had initially had its nomination for the applicant's position as an Interior Decorator refused. The Administrative Appeals Tribunal (AAT), constituted by Member Alison Mercer, was required to consider whether the applicant met criterion 186.223 of Schedule 2 to the Regulations.

The primary legal issue before the Tribunal was whether the applicant's employer had an approved nomination for the position of Interior Decorator at the relevant time, and whether all other sub-criteria within clause 186.223 were satisfied. This clause requires, among other things, that the nomination has been approved and not withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available to the applicant, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that while the employer did not have an approved nomination at the time of the initial delegate's decision, the nomination was subsequently approved by the Tribunal on 5 February 2019, following a review application lodged by the employer. Based on this subsequent approval and evidence presented in the nomination review case, the Tribunal was satisfied that all aspects of clause 186.223 were met. This included the employer continuing to employ the applicant, the nomination being approved and not withdrawn, no adverse information being known or reasonably disregarded, the position remaining available, and the visa application being lodged within the prescribed timeframe after the nomination approval.

Consequently, the Tribunal remitted the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration. The Tribunal directed that the applicant be considered to have met criterion 186.223 of Schedule 2 to the Regulations, allowing the Minister to assess the remaining criteria for the visa.