Jones (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 (Employer Nomination Scheme) temporary residence transition stream. The applicant was a carpenter whose employer's nomination application had initially been refused. The review before the Tribunal involved both the nomination refusal and the visa application, which were heard jointly.

The primary legal issue before the Tribunal was whether the applicant met criterion 186.223(2) of Schedule 2 to the Regulations, which requires that the nomination for the position has been approved and has not been subsequently withdrawn. The Tribunal also considered related requirements concerning the availability of the position and the timing of the visa application relative to the nomination approval.

The Tribunal reasoned that while the Department of Home Affairs had initially refused the nomination application, the nominator had sought review. The Tribunal, on review, set aside the Department's refusal and substituted a decision to approve the nomination. Consequently, the Tribunal found that criterion 186.223(2) was satisfied.

Given this finding, the Tribunal determined that the appropriate course was to remit the visa application to the Minister for reconsideration of the remaining criteria. The Tribunal directed that the applicant be taken to meet criterion 186.223(2).