Hashmi (Migration)

This matter concerned an appeal by an applicant for a Subclass 186 Employer Nomination Scheme visa, specifically under the Direct Entry stream. The core dispute revolved around the approval of the sponsoring employer's position nomination, which had initially been refused by the Department. The applicant was the subject of this nomination, and the appeal sought to have the refusal of the nomination set aside. The decision was made by Phoebe Dunn, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the Subclass 186 visa, particularly in relation to the nominated position. This involved determining if the nomination itself was valid and approved, as required by clause 186.233 of the Migration Regulations. A secondary issue arose concerning the eligibility of other family members, who were applicants as members of the primary applicant's family unit, dependent on the primary applicant satisfying the criteria for the visa.

The Tribunal reasoned that while the initial nomination was refused, the Tribunal had subsequently set aside that refusal and substituted a decision approving the nomination. This meant that the requirement for an approved nomination under clause 186.233(3) was met for the primary applicant. However, the Tribunal found it could not make a direction that the other named applicants met the family unit criteria because, at the time of the Tribunal's decision, the primary applicant did not yet hold the Subclass 186 visa.

Consequently, the Tribunal remitted the applications for reconsideration. The direction was that the primary applicant met the criteria under clause 186.233(3). The applications of the second, third, fourth, and fifth named applicants were referred back to the Department for fresh consideration, as their eligibility was contingent on the primary applicant being granted the visa.