Handuja (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream, for a Cook. The applicant's visa application was based on a nomination made by an employer, which had initially been refused by the Department but was subsequently approved by the Tribunal on review. The Tribunal, constituted by Member Phoebe Dunn, was required to determine whether the applicant met the criteria for the visa, specifically focusing on the approved nomination.

The primary legal issue before the Tribunal was whether the nomination for the position of Cook met the requirements of clause 186.223 of Schedule 2 to the Regulations. This clause mandates that the nominated position must be the subject of an approved nomination that identifies the visa applicant, has not been withdrawn, and is still available. Additionally, it requires that no adverse information is known to Immigration about the nominator or associated persons, or that such information is reasonable to disregard, and that the visa application was made within six months of the nomination's approval.

The Tribunal reasoned that the applicant had satisfied clause 186.223(2) because the nomination, initially refused by the Department, was set aside and approved by the Tribunal on 17 September 2019. As this approval meant the nomination was in order, the Tribunal found that the applicant met this specific criterion for the visa. Consequently, the Tribunal determined that the appropriate course of action was to remit the visa application back to the Minister for consideration of the remaining eligibility requirements.