Marinaci Tamura (Migration)

This matter concerned a visa application by Marinaci Tamura, who sought review of a decision by the Department of Immigration and Border Protection. The core dispute revolved around whether the applicant's nomination for an Employer Nomination Scheme (Subclass 186) visa had been approved as required by clause 186.223 of the relevant regulations. The Administrative Appeals Tribunal (AAT) considered the evidence and submissions presented by the parties.

The primary legal issue before the Tribunal was to determine whether the nomination, made by Braga Thiago on behalf of the applicant, met the criteria stipulated in clause 186.223. This clause outlines several requirements, including that the nominated position must be approved, not subsequently withdrawn, and still available to the applicant. Crucially, it also requires that the visa application be made within six months of the nomination's approval and that there be no adverse information concerning the nominator or associated persons, or that such information be reasonably disregarded.

The Tribunal reasoned that while the Department had initially refused the nomination on 9 March 2018, the nominator had subsequently applied to the Tribunal for a review of that decision. On 23 November 2020, the Tribunal set aside the Department's refusal and substituted a decision approving the nomination. Consequently, the Tribunal found that the applicant now met the requirements of clause 186.223(2), which pertains to the approval of the nomination.

Given this finding, the Tribunal determined that the appropriate course of action was to remit the visa application back to the Minister for reconsideration of the remaining criteria. The Tribunal directed that the applicant be taken as having met the requirements of clause 186.223 of Schedule 2 to the Regulations.