Marasumphun (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal (AAT) regarding a Subclass 186 (Employer Nomination Scheme) visa, Temporary Residence Transition stream. The applicant, Marasumphun, sought review of a decision concerning a nomination made by I am Siam Pty Ltd. The core dispute revolved around whether the nominated position met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to determine whether the position to which the visa application related was the subject of an approved nomination, as stipulated by clause 186.223. This involved assessing whether the nomination had been approved, had not been withdrawn, and whether the position remained available to the applicant, among other conditions outlined in the regulations. The Tribunal also considered the timing of the visa application relative to the nomination approval.

The Tribunal reasoned that the initial refusal of the nomination by a delegate of the Department of Home Affairs had been set aside by the Tribunal itself on 31 August 2020, and a new decision approving the nomination had been substituted. Consequently, the Tribunal found that the nomination had been approved and had not been withdrawn, thereby satisfying clause 186.223(2). The Tribunal concluded that the first named applicant met this specific criterion for the visa.

Given these findings, the Tribunal remitted the visa applications to the Minister for reconsideration, directing that the first named applicant had met the criterion under clause 186.223(2). The Minister was to proceed to consider the remaining criteria for the grant of the Subclass 186 visas.