Mundi (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal (the Tribunal) regarding the refusal of an Employer Nomination (Permanent) (Class EN) visa, specifically a Subclass 186 (Employer Nomination Scheme) visa under the Temporary Residence Transition stream. The applicant's nominating employer, Unique Hair and Beauty Salon Pty Ltd, had applied for approval of a Hairdresser position. The Department initially refused to approve the nomination, leading to the review by the Tribunal.

The primary legal issue before the Tribunal was whether the nomination for the Subclass 186 visa had been approved, as required by clause 186.223 of the Migration Regulations 1994. This clause mandates several conditions, including that the nominated position must be the subject of an approved nomination application identifying the visa applicant, that the nomination has not been withdrawn, that there is no adverse information concerning the nominator or associated persons (or such information is disregarded), that the position remains available, and that the visa application was lodged within six months of the nomination's approval.

The Tribunal found that all the requirements of clause 186.223 were met. It was satisfied that the nominated position was the same as that in the nomination application and visa declaration, that the applicant was identified as a Subclass 457 visa holder in the nomination, and that the nomination had been approved by the Department on 5 October 2020 and had not been withdrawn. Furthermore, the Tribunal was satisfied that no adverse information was known to Immigration, the position remained available, and the visa application was made within the prescribed six-month timeframe.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant meets the criteria under clause 186.223. The Minister is to consider the remaining criteria for the grant of the Subclass 186 visa.