JANG (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa, Temporary Residence Transition stream, by an applicant nominated by Kokos International Melbourne Pty Ltd for the position of Customer Service Manager. The Department of Immigration and Border Protection had initially refused the nomination, but on review, the Tribunal set aside that decision and approved the nomination. The primary dispute before the Tribunal was whether the applicant met the criteria for the visa, specifically clause 186.223(2) of Schedule 2 to the Regulations, and whether a second applicant, identified as a family member, met the criteria for inclusion in the visa application.

The Tribunal was required to determine if the applicant satisfied clause 186.223(2), which mandates that the nomination for the position must have been approved and not subsequently withdrawn, among other conditions. Additionally, the Tribunal had to consider whether the second applicant met clause 186.311, requiring them to be a member of the family unit of the primary applicant who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria and having made a combined application.

The Tribunal reasoned that as the nomination had been approved by the Tribunal on review, the applicant met the requirements of clause 186.223(2). However, the Tribunal found it could not direct that the second applicant met clause 186.311 because, at the time of the Tribunal's decision, the primary applicant did not yet hold the Subclass 186 visa. Consequently, the Tribunal remitted the applications for reconsideration. The Tribunal directed that the first named applicant met the criteria under clause 186.223(2), and referred the case of the second named applicant to the Department to consider the application afresh.