Fong (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, identified as the nominee for the position of Health Manager, sought review of a decision concerning their visa application. The Tribunal, constituted by Terrence Baxter, was tasked with determining whether the nomination for the applicant's position had been approved.

The central legal issue before the Tribunal was the interpretation and application of clause 186.223 of Schedule 2 to the Migration Regulations 1994, which sets out the requirements for an approved nomination in the Temporary Residence Transition stream. This clause mandates that the nominated position must have been the subject of an approved nomination that has not been withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available to the applicant, and that the visa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 the nominator, K & L Endo Medical Pty Ltd, had applied to have the Health Manager position approved with the applicant as the nominee on 11 February 2018. Following an initial refusal by the Department of Home Affairs and a subsequent review application, the Tribunal set aside the refusal and substituted a decision to approve the nomination on 11 July 2022. Consequently, the Tribunal concluded that criterion 186.223(2) of Schedule 2 to the Regulations was met.

Given that the nomination approval criterion was satisfied, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining criteria for the Subclass 186 visa. The decision directed that the applicant be considered to meet clause 186.223(2).