LIU (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa, specifically under the temporary residence transition stream. The primary dispute revolved around the status of the applicant's nominated position. The Tribunal was tasked with determining whether the applicant met the criteria for the visa, particularly in light of a prior refusal of the nomination application.

The central legal issue before the Tribunal was whether the applicant satisfied clause 186.223(2) of Schedule 2 to the Migration Regulations 1994, which requires that the nominated position be the subject of an approved nomination that has not been withdrawn. The Tribunal also considered clause 186.311, which pertains to secondary applicants who are family members of the primary applicant.

The Tribunal reasoned that the applicant met the requirements of clause 186.223(2) because the nomination application, initially refused on 23 April 2018, had subsequently been reviewed by the Tribunal. On 22 January 2021, the Tribunal set aside the refusal and substituted a decision approving the nomination. Consequently, the Tribunal found that the primary applicant met this criterion. However, the Tribunal could not make a direction regarding the secondary applicant's eligibility under clause 186.311, as the primary applicant did not yet hold the Subclass 186 visa at the time of the Tribunal's decision.

The Tribunal remitted the applications for reconsideration. It directed that the first named applicant meets clause 186.223(2) of Schedule 2 to the Regulations. The case of the secondary applicant was referred back to the Department for fresh consideration.