LY (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal (the Tribunal) regarding a refusal to approve a nomination for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream. The applicants sought review of the Department's decision to refuse the nomination for the position of pastry cook.

The Tribunal was required to determine whether the nomination met the criteria set out in clause 186.223 of Schedule 2 to the Migration Regulations 1994. Specifically, the Tribunal considered whether the nominated position was the subject of an approved nomination that had not been withdrawn, whether there was any adverse information concerning the nominator or associated persons, whether the position remained available to the applicant, and whether the visa application was made within the prescribed timeframe after the nomination approval.

The Tribunal found that the employer, Thai Rock Pty Ltd, had made a nomination application on 31 March 2017, which was subsequently refused by the Department on 5 March 2018. The employer sought review of this refusal, and on 4 November 2020, the Tribunal set aside the Department's decision and substituted it with a decision to approve the nomination. Based on this finding, the Tribunal concluded that criterion 186.223(2) was met.

Consequently, the Tribunal remitted the visa applications to the Minister for reconsideration, directing that the first applicant met criterion 186.223(2). The application of the second applicant, who applied as a member of the family unit, would be determined by reference to the outcome of the primary applicant's reconsidered application.