MICHAS (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal concerning an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) visa, Temporary Residence Transition stream. The primary dispute revolved around whether the applicant was the subject of an approved nomination, a prerequisite for this visa subclass. The nominating employer, Chemeco (Aust) Pty Ltd, had initially applied for approval of a nomination for the applicant for the position of Marketing Specialist, which was refused by the Department.

The Tribunal was required to determine if the applicant met the criteria for the Subclass 186 visa, particularly clause 186.223(2) of Schedule 2 to the Regulations, which mandates that the position be the subject of an approved nomination. This clause further requires the applicant to have been identified in the nomination as a relevant visa holder, the position to be the one declared in the visa application, and that the nomination has been approved and not withdrawn. Additionally, the Tribunal considered whether there was adverse information concerning the nominator or associated persons, and if the position remained available to the applicant within six months of the nomination's approval. The Tribunal also had to consider the eligibility of a secondary applicant, who sought to be granted the visa as a member of the primary applicant's family unit.

The Tribunal reasoned that the employer's nomination, initially refused by the Department, was subsequently approved by the Tribunal on 13 March 2018, following a review of the Department's decision. As the nomination was approved and met the other stipulated requirements, the Tribunal concluded that the primary applicant satisfied clause 186.223(2). However, the Tribunal found it could not make a direction that the secondary applicant met the criteria under clause 186.311, as the primary applicant did not hold the Subclass 186 visa at the time of the Tribunal's decision.

Consequently, the Tribunal remitted the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration. The Tribunal directed that the first-named applicant met the criteria under clause 186.223(2) for a Subclass 186 visa. The case of the secondary applicant was referred back to the Department for fresh consideration.