KC (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) visa under the Temporary Residence Transition stream. The dispute before the Tribunal was whether the applicant met the requirement of having an approved nomination for the position of Cook. The Tribunal was tasked with determining if the nomination, initially refused by the Department, had subsequently been approved and if this satisfied the relevant legislative criteria.

The Tribunal was required to consider clause 186.223 of the Regulations, which outlines the criteria for applicants in the Temporary Residence Transition stream. This clause mandates that the position must be the subject of an approved nomination, that the applicant must have been identified as the relevant visa holder in the nomination, and that the position must be the one declared in the visa application. Further, the nomination must have been approved and not withdrawn, there must be no adverse information known to the Department, the position must remain available, and the visa application must have been lodged within six months of the nomination's approval.

The Tribunal found that the nominating employer, Trios Pty Ltd, had applied for approval of the Cook position for the applicant. Although the Department initially refused this nomination, the employer sought review by the Tribunal. On 23 May 2018, the Tribunal set aside the Department's refusal and substituted a decision approving the nomination under regulation 5.19(3). Consequently, the Tribunal concluded that the applicant met the requirements of clause 186.223(2).

Given these findings, the Tribunal remitted the visa application for reconsideration by the Minister. The direction was that the applicant meets the criteria under clause 186.223(2). The application of the second visa applicant, who was a member of the family unit of the primary applicant, was also remitted for full reconsideration, along with the remaining criteria for the primary applicant's application.