Kukk (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream. The applicant’s nominator lodged a nomination approval application on 16 August 2017 for the occupation of "Sales and Marketing Manager". The nomination application was subsequently refused by a delegate of the Minister for Immigration and Border Protection on 14 May 2018, on the basis that the applicant had not met the relevant criteria. The applicant’s visa application was also considered under the Direct Entry and Agreement streams, but these were also found not to be satisfied. The decision under review was made by Mr S Norman, a member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had satisfied the criteria for a Subclass 186 visa, specifically clause 186.223 of Schedule 2 to the Migration Regulations 1994, which pertains to the nomination of a position. The Tribunal was required to determine if the nomination had been approved, had not been withdrawn, if there was no adverse information concerning the nominator or associated persons, if the position remained available, and if the visa application was made within six months of the nomination approval. The Tribunal also considered whether the applicant met the criteria for the Direct Entry and Agreement streams, and whether any family members were entitled to a visa as members of the family unit.

The Tribunal found that the nominator had lodged a valid nomination application, and that the applicant was identified as a Subclass 457 visa holder. However, the delegate had refused the nomination application, finding that clause 186.223(2) or 186.223 had not been met, and that the criteria for the Direct Entry and Agreement streams were also not satisfied. The Tribunal noted that the delegate had not received any response from the applicant to a request for comments. Despite these findings by the delegate, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the criteria under clause 186.223(2) of Schedule 2 to the Regulations.