Park (Migration)

This matter concerned an application for a Subclass 186 Employer Nomination Scheme visa under the temporary residence transition stream. The applicant sought review of a decision to refuse their nomination. The Tribunal considered whether the nomination had been refused, and whether the applicant met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994.

The legal issues before the Tribunal were whether the nominated position met the criteria set out in clause 186.223, specifically that the position was nominated in an application seeking to meet subregulation 5.19(3), that the applicant was identified in relation to the position, that the Minister had approved the nomination, that the nomination had not been withdrawn, that there was no adverse information concerning the nominator or associated persons, that the position remained available, and that the visa application was made within six months of the nomination approval.

The Tribunal found that the approved position was the same as that subject to the nomination application and the visa application declaration, thus satisfying clause 186.223(1). It also found that the employer was the nominator, the nomination had not been withdrawn and the position remained available, satisfying clauses 186.223(2), (3), and (4). Crucially, the Tribunal determined that the visa application, lodged on 29 June 2017, was made before the nomination was approved on 3 June 2020, and therefore clause 186.223(5) was met.

Consequently, the Tribunal concluded that the visa applicant satisfied the requirements of clause 186.223. The Tribunal remitted the visa application to the Minister for reconsideration of the remaining criteria, with a direction that the applicant meets clause 186.223.