Keogh (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 Temporary Residence Transition stream, for a position as a Roof Tiler. The decision under review was made by the Administrative Appeals Tribunal (AAT), with Member Andrew George presiding. The core of the dispute revolved around whether the applicant met criterion 186.223 of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to determine if the applicant satisfied clause 186.223, which outlines several conditions relating to an approved nomination for a permanent visa. These conditions include that the nomination must have been approved and not withdrawn, that there is no adverse information known to the Department of Immigration about the nominator or associated persons, that the nominated position remains available to the applicant, and that the visa application was made within six months of the nomination's approval.

The Tribunal's reasoning focused on assessing each sub-clause of criterion 186.223 against the evidence before it. It found that the nomination was approved on 29 September 2020 and had not been withdrawn. Furthermore, no adverse information was known to Immigration concerning the nominator or associated persons, and the position remained available. However, the Tribunal noted that the visa application was made on 16 November 2017, which predated the nomination approval on 29 September 2020. Despite this temporal discrepancy, the Tribunal concluded that clause 186.223 was met, seemingly by overlooking or implicitly disregarding the six-month time limit in subclause (5) in favour of remitting the matter.

Consequently, the Tribunal remitted the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration. The Tribunal directed that the applicant be considered to have met criterion 186.223 of Schedule 2 to the Regulations, with the Minister to consider the remaining criteria for the visa.