Lin (Migration)

The Administrative Appeals Tribunal considered an application by Mr. Lin for a Subclass 186 Employer Nomination Scheme visa under the temporary residence transition stream. The dispute centred on whether the position nominated by Mr. Lin's employer had been approved, a prerequisite for the visa application. The Department had initially refused to approve the nomination, but this decision was subsequently set aside by the Tribunal on review.

The primary legal issue before the Tribunal was to determine whether the applicant met the requirements of clause 186.223 of the Migration Regulations 1994, specifically subclause (2), which mandates that the position to which the visa application relates must be the subject of an approved nomination. This clause requires that the nomination application identifies the visa applicant and that the nomination itself has been approved.

The Tribunal reasoned that as it had previously set aside the Department's refusal and substituted a decision approving the employer's nomination on 14 January 2021, the applicant now satisfied the criterion under clause 186.223(2). Consequently, the Tribunal found it appropriate to remit the visa application back to the Minister for reconsideration of the remaining eligibility criteria. The Tribunal also directed that the applications of any secondary applicants (members of Mr. Lin's family unit) should be reconsidered by the Department in light of the primary applicant's satisfaction of this criterion.