LEE (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), specifically the temporary residence transition stream. The applicant's nominating employer, Konnichiwa Sushi Pty Ltd, had applied for approval of a position nomination for the applicant as a Cook. The Administrative Appeals Tribunal, constituted by Member Mary Sheargold, was required to determine whether the applicant met the criteria for the visa, particularly in light of a prior refusal of the nomination application by the Department of Immigration.

The primary legal issue before the Tribunal was whether the nomination for the applicant's position as a Cook had been approved, as required by clause 186.223(2) of Schedule 2 to the Migration Regulations 1994. This clause mandates that the Minister has approved the nomination, that it has not been withdrawn, that there is no adverse information concerning the nominator or associated persons (or such information is disregarded), that the position remains available to the applicant, and that the visa application was made within six months of the nomination's approval.

The Tribunal reasoned that on 28 January 2020, it had set aside the Department's decision to refuse the nomination and substituted a decision to approve the nomination under regulation 5.19(3). Consequently, the Tribunal found that the applicant met the requirement of clause 186.223(2) as the relevant nomination had been approved. 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.