Nguyen (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa, specifically under the Temporary Residence Transition stream. The applicant, identified as "Nguyen" in the catchwords, sought review of a decision concerning their eligibility. The Tribunal, presided over by Jade Murphy, was tasked with determining whether the applicant was the subject of an approved employer nomination.

The central legal issue before the Tribunal was the interpretation and application of clause 186.223 of Schedule 2 to the relevant migration regulations. This clause outlines the criteria for an approved nomination in the Temporary Residence Transition stream, requiring that the nominated position be identified in an application for approval, that the visa applicant be identified in relation to that position, and that the position be the subject of a required declaration. Furthermore, the clause mandates that the nomination must have been approved and not subsequently withdrawn, that no adverse information exists regarding the nominator or associated persons (or such information is disregarded), that the position remains available,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 on 15 March 2019, it had set aside a previous refusal of the nomination application and substituted a decision approving the nomination. This approved nomination correctly identified the visa applicant and the relevant position. The Tribunal also confirmed that the nomination had not been withdrawn, no adverse information was known, the position remained available, and the visa application was made within the prescribed six-month period. Consequently, the Tribunal concluded that clause 186.223 was satisfied.

Given these findings, the Tribunal remitted the visa application to the Minister for reconsideration, directing that the applicant met the criteria under clause 186.223 of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the grant of the Subclass 186 visa.