Nguyen (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, made by an applicant identified as a graphic designer. The dispute before the Tribunal was whether the applicant met the requirements of regulation 186.223 of the Migration Regulations 1994. The Tribunal, constituted by Alan McMurran, was required to determine if the nominated position met the specified criteria and if the nomination itself had been validly approved and remained current.

The primary legal issue before the Tribunal was the interpretation and application of clause 186.223, which sets out the requirements for a nominated position in the Temporary Residence Transition stream of the Subclass 186 visa. Specifically, the Tribunal had to ascertain whether the position was the subject of an approved nomination that identified the visa applicant, had not been withdrawn, and was not affected by adverse information. Furthermore, the Tribunal needed to confirm that the position remained available to the applicant and that the visa application was lodged within six months of the nomination's approval.

The Tribunal reasoned that on 11 September 2020, in a combined hearing with the review of the nomination application by Vietface-TV Australia Pty Ltd, it had found itself satisfied that the nomination should be approved. Consequently, the nomination application had been remitted to the Department. The Tribunal further found, based on the available information, that the nomination was not subject to adverse information, that the position was still available to the applicant who was working in the role, and that the visa application was made within the prescribed six-month period. Therefore, the Tribunal concluded that clause 186.223 was met.

Given these findings, the Tribunal determined that the appropriate course of action was to remit the visa application to the Minister for reconsideration of the remaining visa criteria. The Tribunal directed that the applicant met the criteria under clause 186.223 of Schedule 2 to the Regulations.