LI (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa, Temporary Residence Transition stream, made by an applicant who was nominated by Lucky Yoo Pty Ltd. The core dispute revolved around the approval of the employer's nomination, which had initially been refused by the Department. The applicant and the nominator sought review of this refusal. The Administrative Appeals Tribunal (the Tribunal) considered whether the nomination had been approved, a prerequisite for the applicant to meet criterion cl.186.223(2) of the Migration Regulations 1994.

The Tribunal was required to determine if the employer nomination, which identified the applicant as a Subclass 457 visa holder, had been approved. This approval was essential for the applicant to satisfy clause 186.223(2) of the Migration Regulations 1994, which stipulates that the Minister must have approved the nomination. The Tribunal also considered the requirements of clause 186.223(1), which outlines the conditions for the nominated position itself, including its identification in the nomination application, the applicant's status as a Subclass 457 visa holder in relation to that position, and the declaration made at the time of the visa application.

The Tribunal reasoned that following its earlier decision on 12 April 2019, where it set aside the Department's refusal and substituted a decision approving the nomination, the requirement of cl.186.223(2) was now met. The Tribunal noted that the nomination identifying the applicant in the nominated position had indeed been approved. Consequently, the Tribunal concluded that the applicant met this specific criterion for the Subclass 186 visa.

The Tribunal remitted the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration by the Minister. The direction given was that the first named applicant meets criterion cl.186.223(2) of the Subclass 186 (Employer Nomination Scheme) visa, allowing the Minister to assess the remaining criteria for the visa.