Montalto (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 Temporary Residence Transition stream. The dispute centred on whether the applicant met the requirements of clause 186.223 of the Migration Regulations, which pertains to the nomination of a position.

The primary legal issue before the Tribunal was to determine if the applicant satisfied clause 186.223, which outlines several conditions for an approved nomination to be valid for the visa application. These conditions include the nomination being approved and not withdrawn, the absence of adverse information concerning the nominator or associated persons, the continued availability of the nominated position, and that the visa application was lodged within six months of the nomination's approval.

The Tribunal reasoned that while the Department had initially refused the employer nomination, a subsequent review by the Tribunal resulted in the decision to set aside the refusal and approve the nomination. Consequently, the Tribunal found that the first named applicant met the requirement of clause 186.223(2) as the nomination had now been approved. Given this finding, the Tribunal determined that the appropriate course of action was to remit the visa applications for reconsideration by the Minister, directing that the first named applicant's remaining visa criteria be assessed and the second named applicant's application be reconsidered in full.