HWANG (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered the review applications of both the nominator, Red Pepper Club Pty Ltd, and the applicant, concerning refusals of an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) visa under the Temporary Residence Transition stream. The dispute centred on whether the position for which the visa was sought met the requirements of the relevant regulations.

The primary legal issue before the Tribunal was to determine whether the position to which the visa application related was approved under the Temporary Residence Transition stream, as required by clause 186.223(2) of the Migration Regulations 1994. This involved assessing whether the nomination had been approved and not withdrawn, whether there was any adverse information known to the Department of Immigration about the nominator or associated persons, whether the position remained available to the applicant, and whether the visa application was made within six months of the nomination's approval.

The Tribunal reasoned that all the requirements of clause 186.223 had been met. It found that the applicant had provided details of a relevant nomination, that the nomination had been approved by the Tribunal on 28 April 2020 and not subsequently withdrawn, and that the applicant was still employed by the nominator with the position remaining available. Furthermore, the Tribunal was not aware of any adverse information concerning the nominator or associated persons, and it determined that the visa application was made prior to the six-month time limit from the nomination approval.

Consequently, the Tribunal remitted the application for the Employer Nomination (Permanent) (Class EN) visa for reconsideration by the Minister, with a direction that the applicant met the criteria under clause 186.223 of Schedule 2 to the Regulations.