Luu (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Employer Nomination Scheme, Temporary Residence Transition stream. The applicant's nominating employer, Wentworth Metals Group Pty Ltd, had initially had its nomination for the position of Metallurgical or Materials Technician refused by the Department. The employer sought review of this decision, and the Tribunal ultimately set aside the Department's refusal and substituted a decision to approve the nomination. The decision under review was made by Catherine Carney-Orsborn, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the nomination met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations. This clause outlines several criteria that must be satisfied for a nomination to be approved in the Temporary Residence Transition stream, including that the nominated position must be the subject of an approved nomination, that there must be no adverse information known to Immigration about the nominator or associated persons, that the position must still be available to the applicant, and that the visa application must have been made within six months of the nomination's approval.

The Tribunal found that all the criteria under clause 186.223 were met. It was satisfied that the employer was the nominator, that no adverse information was known to Immigration, that the applicant was identified as a Subclass 457 visa holder in the nomination, that the nomination had not been withdrawn and continued to meet the criteria for approval, that the position remained available, and that the visa application was lodged within the prescribed timeframe. Based on these findings, the Tribunal concluded that the first applicant met clause 186.223.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the first applicant had met the criteria specified in clause 186.223 of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the grant of the Subclass 186 visa.