Han (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Employer Nomination Scheme, Temporary Residence Transition stream. The primary applicant, identified as the holder of a Subclass 457 visa, sought to have their nomination approved. The decision under review was made by the Tribunal, which had previously set aside an earlier decision and substituted it with one approving the nomination. However, the Tribunal further concluded that the matter required remittal for reconsideration.

The legal issues before the Tribunal included whether the nominated occupation of Cook – 351411 required licensing, registration, or membership in Darwin, and if so, whether the applicant held or was eligible to hold such credentials at the time of the visa application, pursuant to clause 186.211. The Tribunal also had to determine if the nominated position would provide the applicant with employment for at least two years, as required by clause 186.212, and if the applicant had engaged in conduct contravening specific provisions of the Act related to sponsorship-related events within the previous three years, as per clause 186.212A. Finally, the Tribunal considered the age requirements for applicants in the Temporary Residence Transition stream, specifically whether the applicant had turned 50 at the time of application, given the application was made before 18 March 2018, as stipulated by clause 186.221.

The Tribunal reasoned that clause 186.211 was not applicable as the nominated occupation of Cook did not require licensing or registration in Darwin. It found that clause 186.212 was met, as the employer had the financial capacity to pay the nominated salary for two years and the applicant intended to remain employed for that period. Furthermore, the Tribunal was satisfied that the applicant had not engaged in conduct contravening the Act within the preceding three years, thus meeting clause 186.212A. The Tribunal also noted that the applicant met the age requirement of not having turned 50 at the time of application.

Ultimately, the Tribunal remitted the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration. The direction was that the first named applicant met specific criteria for a Subclass 186 visa, including clause 186.223, which pertains to the nominated position, the applicant's visa status, the declaration made in the visa application, the Minister's approval of the nomination, the absence of adverse information about the nominator, the continued availability of the position, and the timing of the visa application relative to the nomination approval. The Tribunal also considered that the secondary applicants should be reconsidered in light of the findings regarding the first named applicant.