MAHARJAN (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 the approval of a nomination. The Tribunal, constituted by C. Packer, was required to determine whether the nomination met the relevant legislative criteria.

The primary legal issue before the Tribunal was whether the nomination for the position met the requirements of clause 186.223 of Schedule 2 to the relevant regulations. This clause outlines several conditions, including that the position must be nominated in an application seeking to meet subregulation 5.19(3), that the applicant must be identified as a holder of a Subclass 457 visa in relation to that position, and crucially, that the Minister has approved the nomination.

The Tribunal reasoned that a prior decision in Tribunal case 1811491, made on 7 October 2020, had already found that the nominator, The Trustee for Bowan Island Bakery Pty Ltd ATF Bowan Island Unit Trust, met the requirements of regulation 5.19 for the approval of the nomination. In that prior decision, the Tribunal had set aside the delegate's refusal of the nomination application and substituted a decision approving it. Consequently, the Tribunal concluded that clause 186.223(2) was satisfied.

Given that clause 186.223(2) was met, the Tribunal determined that the appropriate course of action was to remit the visa application to the Minister for reconsideration. The remittal was made with the direction that the applicant meets this specific criterion for the Subclass 186 visa, allowing the Minister to consider the remaining eligibility requirements.