McKeegan (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, P J & E L Ravi Pty Ltd, had initially applied to have the position of Solid Plasterer approved with the applicant as the nominee. This nomination application was refused by the Department, but the employer sought review with the Tribunal. The Tribunal, on review, set aside the Department's refusal and substituted a decision to approve the nomination. The applicant's visa application was then remitted to the Minister for reconsideration.

The primary legal issue before the Tribunal was whether the applicant met the criteria under clause 186.223 of Schedule 2 to the Regulations, which governs the nomination requirements for this visa subclass. This clause requires, among other things, that the nominated position is the subject of an approved nomination that has not been withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons, that the position remains available to the applicant, and that the visa application was made within six months of the nomination's approval. The Tribunal also considered the applications of the second and third applicants, who applied as members of the primary applicant's family unit.

The Tribunal reasoned that the employer's nomination application, made on 29 November 2016, had been approved by the Tribunal on 25 June 2019, and had not been withdrawn. Furthermore, the Tribunal found no adverse information known to Immigration regarding the nominator or associated persons, and confirmed that the position remained available to the applicant. The Tribunal also satisfied itself that the visa application was made within the prescribed six-month period after the nomination approval. Based on these findings, the Tribunal concluded that clause 186.223 was met.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, directing that the first applicant met the criteria under clause 186.223. The applications of the second and third applicants were to be determined by reference to the outcome of the primary applicant's application upon remittal to the Department.