O Toole (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) under the temporary residence transition stream. The applicant's nominating employer, Raktacino Holdings Pty Ltd, had applied for approval of a nominated position for the applicant. The Administrative Appeals Tribunal (AAT), with Member Mary Sheargold presiding, was required to determine whether the applicant met the criteria for the visa, particularly concerning the approved nomination.

The central legal issue before the Tribunal was whether the nomination for the applicant's position had been approved and had not been subsequently withdrawn, as required by clause 186.223(2) of Schedule 2 to the Migration Regulations 1994. This clause, in conjunction with other subclauses, mandates that the nominated position must be approved, not withdrawn, and that certain conditions regarding adverse information, position availability, and the timing of the visa application relative to the nomination approval must be met.

The Tribunal found that the employer's initial application for nomination approval had been refused by the Department. However, on review, the Tribunal had set aside that refusal and substituted a decision to approve the nomination on 3 March 2021. Consequently, the Tribunal concluded that the applicant met the requirement of clause 186.223(2) as the relevant nomination had been approved. Given this finding, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria.