Park (Migration)

This matter concerned an appeal before the Tribunal regarding an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) visa under the Temporary Residence Transition stream. The primary dispute revolved around whether the applicant's employer had an approved nomination for the position of Café or Restaurant Manager at the time of the initial delegate's decision. The Tribunal was asked to determine if the nomination criteria, as set out in clause 186.223 of the Migration Regulations 1994, had been met.

The Tribunal was required to consider whether the nomination had been approved and had not been subsequently withdrawn, whether there was any adverse information concerning the nominator or associated persons, if the position remained available to the applicant, and if the visa application was lodged within six months of the nomination's approval. The Tribunal also had to consider the application of a secondary applicant who sought a visa as a member of the primary applicant's family unit.

The Tribunal found that while the employer did not have an approved nomination at the time of the delegate's decision, a subsequent review application resulted in the Tribunal setting aside the refusal and approving the nomination on 5 February 2020. Based on this, the Tribunal was satisfied that all subclauses of clause 186.223 were met, including the employer's continued employment of the applicant, the approval and non-withdrawal of the nomination, the absence of adverse information, the availability of the position, and the timely lodgement of the visa application. Consequently, the Tribunal remitted the visa applications for reconsideration by the Minister, directing that the primary applicant met the criteria under clause 186.223. The secondary applicant's application would be determined in conjunction with the outcome of the primary applicant's remitted application.