Leander (Migration)

The Administrative Appeals Tribunal considered an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), specifically within the Temporary Residence Transition stream. The applicant sought review of a decision concerning their eligibility for this visa, with the central dispute revolving around whether a nomination for the position of Carpenter had been approved.

The primary legal issue before the Tribunal was to determine if the applicant met criterion 186.223(2) of Schedule 2 to the Migration Regulations 1994, which requires that the Minister has approved the nomination and that it has not been subsequently withdrawn. This criterion, in conjunction with others outlined in clause 186.223, necessitates that the nominated position is identified in an approved nomination application, that the applicant is identified as the nominee, and that certain conditions regarding adverse information, position availability, and the timing of the visa application relative to the nomination approval are met.

The Tribunal found that while the initial nomination application was refused by the Department of Home Affairs, this decision was subsequently set aside by the Tribunal on 16 March 2022, with a substituted decision to approve the nomination. Therefore, the Tribunal concluded that criterion 186.223(2) was satisfied. Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, directing that the applicant be taken to meet this specific criterion.