Lee (Migration)

This matter concerned an application for a Subclass 186 Employer Nomination Scheme visa, specifically under the temporary residence transition stream. The applicant's employer had initially had a nomination for a position refused by the Department. The applicant sought review of this refusal before the Tribunal.

The central legal issue before the Tribunal was whether the applicant had an approved nomination for a position with his employer that had not ceased. This required the Tribunal to consider the specific criteria set out in clause 186.223 of the Migration Regulations 1994, which included requirements that the nominated position be approved, not withdrawn, still available, and that the visa application be made within six months of the nomination's approval. The Tribunal also had to consider whether there was any adverse information known to the Department about the nominator or associated persons.

The Tribunal found that while the employer did not have an approved nomination at the time of the Department's initial decision, the Tribunal itself had subsequently set aside the refusal and approved the nomination on 9 December 2020. Based on the evidence presented, including employment agreements, organisational charts, and financial documents, the Tribunal was satisfied that all the requirements of clause 186.223 had been met. The Tribunal therefore remitted the visa application to the Minister for reconsideration of the remaining visa criteria.