NIWAS (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 (Employer Nomination Scheme) Temporary Residence Transition stream. The dispute centred on whether the applicant met the requirements of clause 186.223 of Schedule 2 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was to determine if the applicant satisfied clause 186.223, which mandates that the nominated position must be the subject of an approved nomination that identifies the visa applicant, and that the visa application was made within six months of the nomination's approval. Additionally, the Tribunal had to consider whether there was any adverse information concerning the nominator or associated persons, and if the position remained available to the applicant. The Tribunal also had to assess the eligibility of secondary applicants, who were family members of the primary applicant.

The Tribunal reasoned that the nominated position was indeed the subject of an approved nomination, had not been withdrawn, and was still available to the applicant. It found that the visa application was made prior to the nomination's approval, thus satisfying the requirement that it was made no more than six months after approval. The Tribunal was not aware of any adverse information regarding the nominator or associated persons. However, it noted that secondary applicants could only be granted a Subclass 186 visa if the primary applicant held such a visa.

Consequently, the Tribunal remitted the visa applications for reconsideration by the Minister. It directed that the primary applicant met the criteria under clause 186.223, but a final decision on the primary and secondary applicants' visas required further consideration of remaining criteria, particularly the primary applicant's eligibility for the Subclass 186 visa itself.