MOTAMEDI NEJAD (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), specifically the temporary residence transition stream. The dispute arose from the refusal of a related position nomination by the Department. Calderys Australia Pty Ltd, the nominator, applied for a review of this refusal. The Administrative Appeals Tribunal, differently constituted, had previously set aside the delegate's refusal and approved the nomination. The current proceedings before Senior Member R. Skaros involved the visa application itself, with two applicants named.

The primary legal issue before the Tribunal was whether the nomination of a position in relation to the first applicant had been approved, as required by clause 186.223 of Schedule 2 to the Migration Regulations. This clause mandates that the position must be the subject of an approved nomination that identifies the visa applicant and was the position declared as part of the current visa application. A secondary issue concerned the Tribunal's jurisdiction in relation to the second applicant.

The Tribunal reasoned that as a prior decision had already set aside the refusal and approved the nomination for the first applicant, this criterion of clause 186.223(2) was met. Consequently, the Tribunal determined that the appropriate course was to remit the visa application for the first applicant to the Minister for consideration of the remaining visa criteria. Regarding the second applicant, the Tribunal found it did not have jurisdiction, noting that this applicant was offshore when the review application was made and had remained so.

The Tribunal remitted the Employer Nomination (Permanent) (Class EN) visa applications for reconsideration. It directed that the first named applicant met the criteria under cl.186.223(2) of Schedule 2 to the Regulations. The Tribunal explicitly stated it did not have jurisdiction in respect of the second named applicant.