Park (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal (AAT) regarding an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 Temporary Residence Transition stream. The dispute arose after the Department initially refused to approve a nomination made by Kim's Kitchen Australia Pty Ltd for the applicant, who was identified as a Subclass 457 visa holder. The nominator sought review of this refusal.

The primary legal issue before the Tribunal was whether the nomination met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause mandates, among other things, that the nominated position must be the subject of an approved nomination that has not been withdrawn, that there is no adverse information known to Immigration concerning the nominator or associated persons, and crucially, that the position remains available to the applicant.

The Tribunal found that the Department's initial refusal of the nomination was incorrect. It noted that the nominator had applied for review of that decision, and on 10 May 2022, the Tribunal set aside the Department's decision and substituted an approval of the nomination. As the nomination had now been approved and the position was still available to the applicant, the Tribunal concluded that the first named applicant met the requirements of clause 186.223(2). Consequently, the Tribunal remitted the visa applications for reconsideration by the Minister, directing that the first named applicant's eligibility under clause 186.223(2) was satisfied, and that the remaining criteria for all named applicants should be reconsidered.