Masterson (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's employer, Fast Resort Pty Ltd, had initially had its nomination for the applicant for the position of Program or Project Administrator refused. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria for the visa, particularly clause 186.223 of Schedule 2 to the Regulations.

The primary legal issue before the Tribunal was whether the nomination for the applicant's position met the requirements of clause 186.223, which outlines several conditions including the approval of the nomination, its subsequent non-withdrawal, the absence of adverse information concerning the nominator or associated persons, the continued availability of the position, and the timing of the visa application relative to the nomination approval. The Tribunal had to consider whether these criteria were satisfied, especially in light of the fact that the nomination was initially refused but later approved on review.

The Tribunal reasoned that while the employer did not have an approved nomination at the time of the initial delegate's decision, the AAT had subsequently set aside that refusal and substituted a decision to approve the nomination on 17 June 2019. Based on this, and considering evidence from the nomination review, the Tribunal was satisfied that the employer had made the original nomination, continued to employ the applicant, the nomination was now approved and not withdrawn, there was no adverse information or it was reasonable to disregard it, the position remained available, and the visa application was made within six months of the nomination's approval. Therefore, the Tribunal found that clause 186.223 was met.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant had met the criteria under clause 186.223 of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the grant of the Subclass 186 visa.