Okada (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) visa under the Temporary Residence Transition stream. The applicant sought review of a decision concerning their eligibility for this visa. The Tribunal, constituted by Member Amanda Ducrou, was required to determine whether the applicant met the criteria for an approved nomination.

The central legal issue before the Tribunal was whether the nomination made by Kinfolk Enterprise for the position of Chef in respect of the applicant had been approved and met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause, as applicable, requires that the nominated position be the subject of an approved nomination that identifies the visa applicant, that the nomination has not been withdrawn, that there is no adverse information known to the Department about the nominator or associated persons (or such information is reasonable to disregard), that the position remains available, and that the visa application was made within six months of the nomination's approval.

The Tribunal reasoned that while a delegate of the Department had initially refused to approve the nomination, Kinfolk Enterprise had applied for a review of that decision. Subsequently, the Tribunal had set aside the delegate's decision and substituted a decision to approve the nomination under subregulation 5.19(3) of the Regulations. As the nomination had been approved and not withdrawn, and the applicant had been identified as a Subclass 457 visa holder at the time of nomination, the Tribunal found that clause 186.223(2) was satisfied.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant meets the criteria specified in clause 186.223(2) of Schedule 2 to the Regulations. The Minister is to consider the remaining criteria for the grant of the Subclass 186 visa.