Liu (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream. The applicant's nominating employer, Smiling Buddha Vegetarian Restaurant Pty Ltd, had its nomination for the position of Café or Restaurant Manager refused by the Department. The employer sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the nomination for the applicant's position met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause, as applicable, requires that the nominated position be the subject of an approved nomination in the Temporary Residence Transition stream that identifies the visa applicant, and that the nomination has been approved and not subsequently withdrawn. It also requires that there be no adverse information known to Immigration about the nominator or associated persons, or that such information is reasonable to disregard, that the position remains available to the applicant, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that the employer had applied for approval of the nomination for the Café or Restaurant Manager position in respect of the applicant. Although the Department initially refused this nomination, the Tribunal, on review, set aside the Department's decision and substituted a decision to approve the nomination under subregulation 5.19(3). As the relevant nomination had been approved, the Tribunal concluded that the applicant met the requirement of clause 186.223(2).

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the first applicant met the criteria under clause 186.223(2). The Minister was to consider the remaining criteria for the visa, including those pertaining to any secondary applicant.