Nand (Migration)

This matter concerned an application for Employer Nomination (Permanent) (Class EN) visas, specifically under the Temporary Residence Transition stream of Subclass 186. The primary applicant sought this visa as a panel-beater, supported by an approved nomination from their sponsoring employer. The Administrative Appeals Tribunal (AAT) was tasked with reviewing the decision concerning the visa application.

The central legal issue before the Tribunal was whether the visa applicants met the criteria for the grant of the Subclass 186 visas. This involved a detailed examination of clause 186.223 of the relevant regulations, which outlines the requirements for an approved nomination. Specifically, the Tribunal had to determine if the nominated position was correctly identified, if the nomination had been approved and not withdrawn, if there was any adverse information concerning the nominator or associated persons, if the position remained available to the applicant, and if the visa application was lodged within the prescribed timeframe after the nomination's approval.

The Tribunal found that the nominated position of panel-beater was properly declared and identified the applicant as a Subclass 457 visa holder, thus satisfying clause 186.223(1). It was also satisfied, based on the evidence, that the nomination had not been withdrawn and the position remained available, fulfilling clauses 186.223(3) and (4). Crucially, the Tribunal noted that a prior decision had set aside a nomination refusal and substituted an approval on 11 January 2021. Given this approval date, the Tribunal concluded that the visa application, lodged on 30 June 2017, was made within the six-month period stipulated by clause 186.223(5). The Tribunal also considered the requirement under clause 186.223(3A) regarding adverse information.

Consequently, the Tribunal remitted the visa applications for reconsideration by the Minister. The direction was that the first applicant met the criteria under clause 186.223 of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the Subclass 186 visas in respect of all applicants, including the spouse and child who were claimed as members of the same family unit.