Menard (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, J and N Business Services Pty Ltd, had its nomination for the position of Marketing Specialist refused by the Department. The employer then sought review of this decision before the Tribunal. The Tribunal, constituted by Nicola Findson, 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 of the position met the requirements of clause 186.223. This clause mandates that the nominated position must be the subject of an approved nomination that identifies the visa applicant, has not been withdrawn, and was approved within six months of the visa application. It also requires that there be no adverse information known to Immigration about the nominator or associated persons, or that such information is reasonable to disregard, and that the position remains available to the applicant.

The Tribunal reasoned that the employer's nomination for the Marketing Specialist position had been approved by the Tribunal on review on 12 August 2020, and this approval had not been withdrawn. The Tribunal was satisfied, based on the evidence presented, that the position was still available to the applicant, the visa application was made within the six-month timeframe after the nomination approval, and there was no adverse information known to Immigration concerning the nominator or associated persons. Consequently, the Tribunal found that the applicant met the requirements of clause 186.223.

Given these findings, the Tribunal determined that the appropriate course of action was to remit the visa application to the Minister for reconsideration of the remaining visa criteria. The Tribunal directed that the applicant had met the criteria under clause 186.223.