Moore (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Temporary Residence Transition stream of Subclass 186. The applicant's nominating employer, Lumi Technologies Pty Ltd, had initially applied to the Department for approval of a nominated position for the applicant. The Department refused this nomination, leading the employer to seek review by the Tribunal. The Tribunal, presided over by Cathrine Burnett-Wake, ultimately determined that the matter should be remitted for reconsideration.

The central legal issue before the Tribunal was whether the applicant's nomination for the Subclass 186 visa had been approved. Clause 186.223 of the Regulations outlines the requirements for this stream, including that the position must be the subject of an approved nomination, the applicant must have been identified as a relevant visa holder in that nomination, and the nomination must not have been subsequently withdrawn. Additional criteria relate to adverse information, the continued availability of the position, and the timing of the visa application relative to the nomination approval.

The Tribunal reasoned that on 9 April 2018, it had set aside the Department's refusal and substituted a decision to approve the nomination under r.5.19(3). As this approval had been granted and not withdrawn, the Tribunal found that the applicant met the criterion in cl.186.223(2). Consequently, the Tribunal remitted the visa application to the Minister for consideration of the remaining eligibility criteria.