Gill (Migration)

This matter concerned an appeal by a visa applicant, identified as the first named applicant, and her family members (the second and third named applicants), against a decision concerning their applications for Employer Nomination (Permanent) (Class EN) visas, specifically the Subclass 186 Employer Nomination Scheme visa under the Temporary Residence Transition stream. The central dispute revolved around the approval of the nomination for the position of Hair or Beauty Salon Manager. The case was heard by Cathrine Burnett-Wake, a member of the Tribunal.

The primary legal issue before the Tribunal was whether the nomination for the position of Hair or Beauty Salon Manager met the requirements of clause 186.223 of Schedule 2 to the relevant regulations. This clause outlines several conditions, including that the nominated position must have been approved, not subsequently withdrawn, that there was no adverse information known to Immigration about the nominator or associated persons, that the position remained available to the applicant, and that the visa application was made within six months of the nomination's approval.

The Tribunal reasoned that the nominating employer had applied for approval of the position, and although the Department initially refused, the Tribunal had previously set aside that decision and substituted an approval on 5 September 2018. As the nomination had been approved and the applicant was a 457 visa holder at the time, the Tribunal found that clause 186.223(2) was met. Consequently, the Tribunal determined that the appropriate course was to remit the visa application for reconsideration by the Minister, directing that the first named applicant met the criteria under clause 186.223(2). The applications of the second and third named applicants, as family members, were also remitted for full reconsideration.