Lueck (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) visa under the Temporary Residence Transition stream. The applicant sought review of a decision concerning an approved nomination for the position of Architect. The Tribunal was tasked with determining whether the applicants met the criteria under clause 186.223(2) of the relevant regulations.

The primary legal issue before the Tribunal was whether the nomination and the associated visa application satisfied clause 186.223 of the Migration Regulations 1994. This clause, as applicable, required that the nominated position be the subject of an approved nomination, that the nominator be the prospective employer, that the nomination had not been withdrawn, that there was no adverse information known to Immigration about the nominator or their associates, that the position remained available to the applicant, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that the nomination was made by Mr. Steendyk, a sole trader, who also signed the employment contract, thus satisfying the requirement that the nominator be the prospective employer. The Tribunal noted that the Department had initially refused to approve the nomination, but this decision was set aside by the Tribunal, and the nomination was subsequently approved and had not been withdrawn. There was no adverse information before the Tribunal regarding Mr. Steendyk or his associates. The most recent employment contract indicated the position remained available, and the visa application was lodged within the six-month timeframe after the nomination's approval.

Consequently, the Tribunal concluded that clause 186.223(2) and other related criteria were met. The Tribunal therefore remitted the visa application to the Minister for reconsideration, with a direction that the first applicant met the criteria under clause 186.223.