MILAD (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Temporary Residence Transition stream of the Subclass 186 (Employer Nomination Scheme) visa. The applicant sought review of a decision concerning their visa application, which was heard by the Tribunal. The core of the dispute revolved around whether the applicant met the requirements of clause 186.223 of the relevant regulations, which pertains to the approval of the nominated position.

The Tribunal was required to determine if the applicant satisfied clause 186.223, which outlines several conditions for the nominated position. These include the nomination being approved and not withdrawn, the absence of adverse information concerning the nominator or associated persons (or that such information could be disregarded), the continued availability of the position to the applicant, and that the visa application was lodged within six months of the nomination's approval. The applicant's initial visa application was based on a nomination by TARP MARKETING PTY LIMITED, which had been refused by the Department.

The Tribunal reasoned that the initial refusal of the nomination had been set aside by the Tribunal on 30 October 2020, and a decision to approve the nomination had been substituted. Consequently, the Tribunal found that the applicant met the requirements of clause 186.223(2) as the nomination had now been approved. The Tribunal also noted that other aspects of clause 186.223 were satisfied, including the absence of adverse information, the availability of the position, and the timing of the visa application.

Given these findings, the Tribunal remitted the visa applications for reconsideration. The direction was that the first named applicant met the criteria under clause 186.223(2), and therefore, the remaining criteria for that applicant's visa should be reconsidered. Additionally, the applications of the second and third named visa applicants were also remitted for full reconsideration.