Nguyen (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream. The applicant's employer had initially applied for approval of a nomination for the position of Café or Restaurant Manager, which the Department refused. The employer then applied to the Tribunal for a review of this decision. The Tribunal, constituted by Member Mary Sheargold, was required to determine whether the nomination for the applicant's position had been approved.

The central legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations. This clause, in essence, requires that the position be the subject of an approved nomination that identifies the visa applicant, has not been withdrawn, and that there is no adverse information concerning the nominator or associated persons, or that such information can be disregarded. Furthermore, the position must remain available to the applicant, and the visa application must be made within six months of the nomination's approval.

The Tribunal found that the employer's nomination for the applicant's position had indeed been approved by the Department on 8 January 2021, following a review by the Tribunal which set aside the initial refusal. As this criterion was met, the Tribunal determined that the appropriate course of action was to remit the visa application to the Minister for consideration of the remaining eligibility criteria. The Tribunal directed that the applicant met clause 186.223(2) of Schedule 2 to the Regulations.