Gan (Migration)

The Administrative Appeals Tribunal considered an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream, made by a pastrycook. The applicant's employer, the Trustee for BD & LPJ Family Trust trading as Bonbons Bakery Franchise, had made a nomination in support of the visa application. The core dispute revolved around whether the nomination had been approved as required by clause 186.223 of the relevant regulations.

The Tribunal was required to determine if the applicant met the criteria under clause 186.223, specifically whether the nomination had been approved and had not been subsequently withdrawn, among other conditions. This involved examining the history of the nomination, which had initially been refused by the Department of Immigration. The Tribunal also needed to consider whether the position remained available to the applicant and if the visa application was lodged within the prescribed timeframe after the nomination approval.

The Tribunal reasoned that while the Department had initially refused the nomination, its own decision to set aside that refusal and substitute an approval on 6 September 2021 meant that the nomination was now approved. Consequently, the Tribunal found that the applicant met the requirements of clause 186.223(2). As this criterion was now satisfied, the Tribunal determined that the appropriate course was to remit the visa application back to the Minister for reconsideration of the remaining criteria for the Subclass 186 visa.