Lam (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Temporary Residence Transition stream. The primary applicant sought review of a decision concerning the approval of a nomination for the position of Restaurant Manager. The second applicant applied as a member of the primary applicant's family unit. The decision was made by Terrence Baxter, a Member of the Tribunal.

The central legal issue before the Tribunal was whether the nomination for the Restaurant Manager position met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause requires, among other things, that the nomination has been approved by the Minister, has not been withdrawn, and that the position remains available to the applicant. The Tribunal also considered the timing of the visa application in relation to the nomination approval.

The Tribunal reasoned that the nomination application, initially refused by the Department of Home Affairs, was subsequently reviewed. On 20 July 2021, the Tribunal set aside the refusal and substituted a decision to approve the nomination. Consequently, the Tribunal found that clause 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 visa criteria. The second applicant's application was also remitted for determination.