Mansi (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Temporary Residence Transition stream of Subclass 186 (Employer Nomination Scheme). The applicant’s nominating employer, Ostastand Pty Ltd, had initially applied for approval of a nominated position for the applicant, which was refused by the Department. The employer then sought review of this refusal. The Administrative Appeals Tribunal was required to determine whether the applicant met criterion cl.186.223(2) of Schedule 2 to the Regulations, which pertains to the approval of a nominated position for applicants in the Temporary Residence Transition stream.

The Tribunal considered that for an applicant to meet cl.186.223(2), the position must have been the subject of an approved nomination under r.5.19(3) of the Regulations. This requires the applicant to have been identified in the nomination as the relevant Subclass 457 visa holder, and the position to be the one that was the subject of the required declaration. Crucially, the nomination itself must have been approved. In this instance, the Tribunal found that on 22 August 2017, it had set aside the Department's refusal and substituted a decision to approve the nomination in respect of the applicant, who was a 457 visa holder at the time.

As the Tribunal had previously approved the relevant nomination, it concluded that the applicant met the requirement stipulated in cl.186.223(2). Consequently, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining criteria for the visa. The applications of the secondary applicants, who were members of the first applicant's family unit, were also remitted to the Minister for consideration of the secondary criteria.