Mudiyanselage (Migration)

This matter concerned a review of a decision regarding an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Employer Nomination Scheme, Temporary Residence Transition stream. The primary applicant, identified as a holder of a Subclass 457 visa, sought to have their nomination approved. The Department had initially refused to approve the nomination, leading the nominating employer, Esprit Hair Pty Ltd, to seek review by the Tribunal. The Tribunal, constituted by Cathrine Burnett-Wake, was tasked with determining whether the nomination met the relevant criteria.

The central legal issue before the Tribunal was whether there was an approved nomination for the applicant, as required by clause 186.223 of Schedule 2 to the Migration Regulations. This clause, as applicable, stipulated several conditions, including that the nomination must have been approved and not subsequently withdrawn, that no adverse information was known to Immigration or could be disregarded, that the position remained available to the applicant, and that the visa application was made within six months of the nomination's approval. The Tribunal also considered the requirements of subregulation 5.19(3) and the identification of the applicant as a 457 visa holder in the nomination.

The Tribunal reasoned that on 31 May 2019, it had previously set aside the Department's refusal and substituted a decision to approve the nomination under r.5.19(3). As this approval had been made and not withdrawn, and given the applicant was a 457 visa holder at the time, the Tribunal found that the applicant met the requirements of cl.186.223(2). Consequently, the Tribunal concluded that the appropriate course was to remit the visa application to the Minister for reconsideration of the remaining criteria. The applications of the second, third, and fourth named applicants, who were family members of the primary applicant, were also remitted for full reconsideration.