Hundal (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), specifically within the Temporary Residence Transition stream. The primary applicant sought this visa as a Customer Service Manager, with the employer, Team Western Australia PTY Ltd ATF the White Family Trust, having lodged an approved nomination. The decision was made by the Tribunal.

The central legal issue before the Tribunal was whether the position to which the visa application related was the subject of an approved nomination that satisfied the requirements of Clause 186.223 of the Migration Regulations. This clause mandates that the nominated position must be identified in an application for approval of a nomination in the Temporary Residence Transition stream, that the nomination must have been approved and not withdrawn, that there must be no adverse information known to the Department about the nominator or associated persons, or such information must be reasonable to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 have been made within six months of the nomination's approval.

The Tribunal reasoned that while the Department had initially refused the nomination application on 23 July 2019, the Tribunal itself, on review on 3 April 2023, had subsequently approved the nomination. Consequently, the Tribunal found that the nominated position met the requirements of cl.186.223. Furthermore, the Tribunal determined that the secondary applicants, who applied as members of the primary applicant's family unit and were included in the approved nomination, satisfied the criteria under reg.186.312.

Given these findings, the Tribunal concluded that the appropriate course of action was to remit the visa application to the Minister for reconsideration of the remaining criteria. The Tribunal directed that the first named applicant met the criteria under cl.186.223 of Schedule 2 to the Regulations.