HWANG (Migration)

The Administrative Appeals Tribunal considered the applications of Mr. Hwang and other family members for Employer Nomination (Permanent) (Class EN) visas, specifically Subclass 186 (Employer Nomination Scheme). The primary dispute concerned whether the nominating employer's nomination for the position of Marketing Specialist in favour of Mr. Hwang had been approved, a prerequisite for the visa application.

The Tribunal was required to determine if the primary applicant, Mr. Hwang, met the criteria for the Subclass 186 visa, particularly clause 186.223(2) which relates to an approved nomination for applicants in the Temporary Residence Transition stream. Additionally, the Tribunal had to consider whether the secondary applicants met clause 186.311, which requires them to be members of the family unit of a primary applicant who holds a Subclass 186 visa granted on the basis of satisfying primary criteria.

The Tribunal reasoned that a prior decision by the Tribunal on 19 January 2018 had set aside the Department's refusal and substituted a decision to approve the nomination in respect of Mr. Hwang, who was a Subclass 457 visa holder at the time. Consequently, the Tribunal found that Mr. Hwang met the requirement of clause 186.223(2). However, the Tribunal was unable to make a direction that the secondary applicants met their criteria because, at the time of the Tribunal's decision, Mr. Hwang did not yet hold the Subclass 186 visa.

Accordingly, the Tribunal remitted the applications for reconsideration. The Tribunal directed that Mr. Hwang met the criteria under clause 186.223(2) for the Subclass 186 visa. The cases of the secondary applicants were referred back to the Department for fresh consideration of their applications.