Gosselke (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa, Temporary Residence Transition stream, by an applicant nominated by Toscana (WA) Pty Ltd. The dispute arose because the Department had initially refused to approve the employer's nomination, a prerequisite for the visa. The applicant sought review of this refusal before the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criterion in clause 186.223(2) of Schedule 2 to the Regulations, which requires the nominated position to be the subject of an approved nomination. This clause further stipulates that the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and the position must correspond to that declared in the current visa application.

The Tribunal reasoned that the employer nomination, initially refused by the Department, had subsequently been approved by the Tribunal on 25 July 2018, following an application for review by Toscana (WA) Pty Ltd. As the nomination was now approved and the applicant was identified as the relevant 457 visa holder in that nomination, the Tribunal concluded that the applicant met the requirements of clause 186.223(2). Consequently, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria.