Jackson (Migration)

This matter concerned an appeal before the Tribunal regarding a Subclass 186 (Employer Nomination Scheme) visa, specifically within the Temporary Residence Transition stream. The core dispute revolved around the approval of the employer's nomination for the visa applicant. The Tribunal was tasked with determining whether the nomination met the relevant legislative criteria.

The primary legal issue before the Tribunal was whether the employer's nomination for the visa applicant satisfied clause 186.223 of Schedule 2 to the Migration Regulations. This clause outlines several requirements, including that the nominated position must be the subject of an approved nomination application, that the nomination has not been withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available to the applicant, and that the visa application was lodged within six months of the nomination's approval.

The Tribunal reasoned that it must first make findings of fact on the disputed material matters. It found that the nominated position was indeed the same as that which was the subject of the relevant nomination application and the visa application declaration, thus satisfying subclause 186.223(1). The Tribunal also found that the nominator was the same person who would employ the applicant, and that the nomination had been approved and not withdrawn, satisfying subclauses 186.223(2) and (3). Furthermore, the Tribunal was satisfied that the position remained available and that the visa application was made within the prescribed six-month period after the nomination approval, fulfilling subclauses 186.223(4) and (5).

Consequently, the Tribunal found that the visa applicant met the requirements of clause 186.223. The Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria, with a direction that the applicant had satisfied clause 186.223.