Malek (Migration)

This matter concerned an application for review of a decision by the Department of Home Affairs to refuse a Subclass 186 (Employer Nomination Scheme) visa, Temporary Residence Transition stream, for the position of Fleet Manager. The primary applicant, Mr Malek, sought the visa, with his wife and two children as secondary applicants. The Department's refusal was based on the applicant not meeting clause 186.223 and the secondary applicants not meeting clause 186.311 of the Migration Regulations 1994 (Cth), due to the employer's nomination not being approved. The Administrative Appeals Tribunal heard the application for review of the visa refusal concurrently with the employer's application to review the rejection of its nomination.

The central legal issue before the Tribunal was whether there was an approved nomination for Mr Malek in the nominated position of Fleet Manager. This question was intrinsically linked to the outcome of the employer's separate application to review the Department's rejection of its nomination.

The Tribunal, presided over by Peter Newton SC, noted that the criteria for the Subclass 186 visa, particularly for the Temporary Residence Transition stream, require an approved nomination. Given that the employer's application to review the rejection of its nomination was heard concurrently, and evidence in one application was relevant to the other, the Tribunal concluded that the matter should be remitted for reconsideration. This approach acknowledges the interdependence of the visa application and the employer's nomination approval.