HEFER (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) visa under the Temporary Residence Transition stream. The applicant sought review of a decision concerning their eligibility for this visa. The Tribunal, presided over by Member Alan McMurran, was tasked with determining whether the applicant was the subject of an approved nomination that met the relevant legislative criteria.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause outlines several requirements for the nominated position and the nomination itself, including that the position must be nominated in an application that identifies the visa applicant, that the nomination must have been approved and not withdrawn, that there must be no adverse information known to the Department about the nominator or associated persons (or such information must be reasonable to disregard), that the position must remain available to the applicant, and that the visa application must be made within six months of the nomination's approval.

The Tribunal found that the nomination application had been approved on review by the Tribunal on 20 April 2020 and had not been withdrawn. It was also satisfied that no adverse information was known to the Tribunal or the Department concerning the nominator or associated persons, and that the position of Project Administrator remained available to the applicant on a full-time basis. Furthermore, the Tribunal was satisfied that the visa application was made within the six-month timeframe following the nomination's approval. Consequently, the Tribunal concluded that clause 186.223 was met.

Given these findings, the Tribunal determined that the appropriate course of action was to remit the visa application to the Minister for reconsideration, with a direction that the applicant meets the criteria specified in clause 186.223 of Schedule 2 to the Regulations. The Minister is therefore required to consider the remaining criteria for the grant of the Subclass 186 visa.