Mootyaloo (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically a Subclass 186 (Employer Nomination Scheme) visa under the temporary residence transition stream. The applicant sought review of a decision that refused to approve his employer's nomination for a position. The Tribunal was required to determine whether the applicant had an approved nomination for a position with his employer that had not ceased.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause outlines the requirements for an approved nomination in the Temporary Residence Transition stream, including that the nominated position must be the subject of an approved nomination identifying the visa applicant, that the nomination has not been withdrawn, that there is no adverse information known to Immigration, that the position remains available, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that while the employer did not have an approved nomination at the time of the Department's initial decision, the Tribunal itself had subsequently set aside the Department's refusal and substituted a decision approving the nomination. Based on the evidence presented, including the employer's continued support, the applicant's employment agreement, organisational chart, position description, and recent pay summaries, the Tribunal was satisfied that all criteria under clause 186.223 were met. The Tribunal therefore remitted the application for reconsideration by the Department, with a direction that the applicant met the specified criteria. The applications of other named applicants were to be determined by reference to the outcome of this applicant's reconsidered application.