Gill (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa, specifically within the Temporary Residence Transition stream. The applicant's nominating employer, Unique Hair and Beauty Salon Pty Ltd, had applied for approval of a Hairdresser position. The Department initially refused to approve the nomination, leading the employer to seek review by the Administrative Appeals Tribunal. The Tribunal, presided over by Michelle East, was tasked with determining whether the relevant nomination had been approved.

The primary legal issue before the Tribunal was whether the applicant met the criteria set out in clause 186.223 of Schedule 2 to the Migration Regulations. This clause requires, among other things, that the nominated position is the subject of an approved nomination application that identifies the visa applicant, that the nomination has been approved and not withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available, and that the visa application was made within six months of the nomination's approval.

The Tribunal reasoned that on 5 October 2020, it had previously set aside the Department's refusal and substituted a decision to approve the nomination under subregulation 5.19(3). Based on the evidence before it, the Tribunal was satisfied that all elements of clause 186.223 had been met. Specifically, the Tribunal found that the position was the same as that nominated and declared in the visa application, the nomination had been approved and not withdrawn, no adverse information was known or was reasonable to disregard, the position remained available, and the visa application was lodged within the prescribed timeframe after nomination approval.

Consequently, the Tribunal remitted the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration. The Tribunal directed that the first named applicant met clause 186.223 of Schedule 2 to the Regulations, leaving the remaining visa criteria to be considered by the Minister.