LEE (Migration)

This matter concerned an application for a Subclass 186 Employer Nomination Scheme visa, Temporary Residence Transition stream, for the position of cook. The applicant relied on a nomination made by Elleo Holdings 3 Pty Ltd. The primary dispute before the Tribunal was whether the relevant nomination had been approved, as required by clause 186.223(2) of Schedule 2 to the Migration Regulations.

The Tribunal was required to determine if the applicant met the criteria for the visa, specifically whether the nomination for the position had been approved. The applicant's initial visa application was based on a nomination that had been refused by the Department. The nominator subsequently sought review of this refusal by the Tribunal.

The Tribunal reasoned that clause 186.223(2) mandates the approval of the nomination. It noted that the Department had initially refused the nomination, but on review, the Tribunal had set aside that decision and substituted an approval of the nomination on 5 December 2018. As the nomination had been approved, the Tribunal found that the applicant met this specific criterion. Consequently, the Tribunal remitted the application to the Minister for reconsideration of the remaining visa criteria.