HONGSLERTPIBHOP (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa, Temporary Residence Transition stream. The applicant sought review of a decision concerning the approval of a nomination made by Golden Produce Nominees Pty Ltd ATF The Pham Nguyen Family Trust. The Tribunal, constituted by R. Skaros, was required to determine whether the relevant nomination had been approved in accordance with the applicable migration regulations.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994, specifically subclause (2) which mandates that the nomination has been approved. The applicant's employer nomination, in which the applicant was identified as a Subclass 457 visa holder, had initially been refused by the Department. The nominator subsequently sought review of this refusal.

The Tribunal reasoned that the nominator had applied for review of the Department's decision not to approve the nomination. On 12 November 2018, the Tribunal had set aside the Department's decision and substituted a decision approving the nomination. Consequently, the Tribunal found that the applicant met the requirement of clause 186.223(2) as the relevant nomination had been approved.

The Tribunal concluded that, having found the applicant met this criterion, the appropriate course of action was to remit the application to the Minister for reconsideration of the remaining criteria for the grant of the visa. The Tribunal directed that the applicant met clause 186.223(2) of Schedule 2 to the Regulations.