Nguyen (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding a Subclass 186 (Employer Nomination Scheme) visa, Temporary Residence Transition stream, for a Hair or Beauty Salon Manager. The applicant sought review of a decision that had not been detailed in the provided text, but the Tribunal was tasked with determining whether the nomination for the visa had been approved.

The primary legal issue before the Tribunal was whether the nomination for the visa met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause outlines several conditions, including that the nominated position must be the subject of an approved nomination that identifies the visa applicant, has not been withdrawn, and that there is no adverse information concerning the nominator or associated persons, or such information can be disregarded. Additionally, the position must remain available to the applicant, and the visa application must be lodged within six months of the nomination's approval.

The Tribunal found that the applicant satisfied clause 186.223 in its entirety. It noted that the nominated position was identified in an application meeting regulatory requirements, the applicant was identified as a Subclass 457 visa holder, and the necessary declaration was made. Crucially, the Tribunal determined that the nomination had been approved, as a previous departmental decision had been set aside and the nomination approved by the Tribunal on 9 November 2020. The Tribunal also found no evidence of withdrawal, no adverse information, that the position remained available, and that the visa application was made within the six-month timeframe.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the first named applicant met the criteria under clause 186.223. The Minister was to consider the remaining criteria for the visa for all applicants.