Jaycock (Migration)

This matter concerned a review of a decision to refuse an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream. Both the nominator, Australian Commercial Entertainment Pty Ltd, and the applicant sought review of the refusal. The Tribunal was required to determine whether the position to which the application related met the criteria under clause 186.223 of Schedule 2 to the Regulations.

The legal issues before the Tribunal were whether the nominated position was approved, had not been withdrawn, whether there was any adverse information concerning the nominator or associated persons, if the position remained available to the applicant, and if the visa application was made within six months of the nomination's approval. The Tribunal also considered whether the applicant was identified as a Subclass 457 visa holder in relation to the nomination and had made the necessary declaration.

The Tribunal found that the applicant had provided details of a relevant nomination, which was approved and had not been withdrawn. It was satisfied that the position was still available to the applicant, who was currently employed by the nominator. Crucially, the Tribunal determined that the visa application was made prior to the nomination's approval, meaning it was not made more than six months after approval. Furthermore, the Tribunal was not aware of any adverse information regarding the nominator or associated persons.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant met the criteria under clause 186.223 of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the visa.