Kapuhen Thuduwage (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), specifically the Temporary Residence Transition stream. The applicant's employer had initially had its nomination refused by the Department. However, on review by the Tribunal, the Department's refusal decision was set aside, and a decision approving the nomination was substituted. The dispute before the Tribunal was whether the applicant had an approved nomination for a position with his employer that had not ceased.

The Tribunal was required to determine whether the applicant met the criteria under clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause outlines several requirements for an approved nomination, including that the nominated position must be the subject of an approved nomination application that identifies the applicant, that the nomination has not been withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons (or such information is reasonable to disregard), that the position remains available to the applicant, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that while the employer did not have an approved nomination at the time of the Department's initial decision, the subsequent review by the Tribunal resulted in the substitution of a decision approving the nomination. Based on the evidence presented, including the employer's continued support and an employment contract, the Tribunal was satisfied that all sub-clauses of clause 186.223 were met. Specifically, the position of Accountant was nominated, the applicant was identified, the nomination was approved and not withdrawn, no adverse information was known or was reasonable to disregard, the position remained available, and the visa application was made within the prescribed timeframe after the nomination's approval.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant had met the criteria under clause 186.223. The Minister was to consider the remaining criteria for the grant of the Subclass 186 visa.