Hong (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa, Temporary Residence Transition stream, for the applicant, Hong. The dispute arose when the Department refused to approve the nomination made by SUNNY SUPERIOR SEAFOOD PTY LTD for the position of Cook. The nominating employer subsequently applied to the Tribunal for a review of this decision. The Tribunal, constituted by De-Anne Kelly, was required to determine whether the applicants met the criteria under clause 186.223(2) of the relevant regulations.

The primary legal issue before the Tribunal was whether the nomination for the Cook position met the requirements of clause 186.223 of the Migration Regulations 1994. This clause, as applicable, stipulated several conditions, including that the nominated position must be the one identified in the visa application, that the nominator must be the prospective employer, that the nomination must have been approved and not withdrawn, that there must be no adverse information known to Immigration concerning the nominator or associated persons, that the position must remain available to the applicant, and that the visa application must be lodged within six months of the nomination's approval.

The Tribunal found that the nomination met the requirements of clause 186.223. It noted that the nomination was made by Mr. Cheng, representing SUNNY SUPERIOR SEAFOOD PTY LTD, who also signed the employment contract, establishing them as the prospective employer and nominator. The Tribunal confirmed that the nomination had been approved and not withdrawn, and that no adverse information was presented regarding the nominator or their associates. Furthermore, the Tribunal was satisfied that the position remained available and that the visa application was lodged within the prescribed six-month period after the nomination's approval.

Consequently, the Tribunal concluded that the first named applicant met the criteria under clause 186.223 of Schedule 2 to the Regulations. The Tribunal therefore remitted the primary and secondary applicants' visa applications to the Minister for reconsideration of the remaining criteria for the grant of the Subclass 186 visas.