GURUNG (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream, for a Marketing Specialist. The primary applicant's employer, Hima-Aus Education Consultancy Pty Ltd, had applied to have the position approved with the first named applicant as the nominee. This nomination application was initially refused by the Department, but the Administrative Appeals Tribunal (AAT) subsequently set aside that refusal and substituted a decision to approve the nomination. The second named applicants applied as members of the primary applicant's family unit.

The central legal issue before the Tribunal was whether the applicants met criterion 186.223(2) of Schedule 2 to the Migration Regulations, which requires that the nomination has been approved and has not been subsequently withdrawn. The Tribunal also considered the related requirements that the position must still be available to the applicant and that the visa application must have been made no more than six months after the nomination was approved.

The Tribunal reasoned that, following its previous decision to set aside the Department's refusal and approve the nomination, the requirement for an approved nomination was satisfied. It found that the nomination had been approved on 24 May 2021 and had not been withdrawn. The Tribunal also noted that the employer's nomination application was made on 19 June 2017, and the subsequent review application was filed on 20 July 2018, indicating that the nomination was approved within the relevant timeframe for the visa application.

Consequently, the Tribunal remitted the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration by the Minister. The Tribunal directed that the first named applicant met criterion 186.223(2) of Schedule 2 to the Regulations, and the applications of the second named applicants would be determined by reference to the outcome of the primary applicant's application upon remittal.