Patel (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Temporary Residence Transition stream of the Subclass 186 (Employer Nomination Scheme) visa. The applicant's nominating employer, Piovillico Flowers Pty Ltd, had applied for approval of a position as Nurseryperson for the applicant. The Department initially refused to approve the nomination, leading the employer to seek review by the Tribunal. The Tribunal, constituted by Member Mary Sheargold, was asked to determine whether the nomination had been approved.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause, as applicable, requires that the position be the subject of an approved nomination that identifies the visa applicant, that the nomination has not been withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons (or such information can be disregarded), that the position remains available, and that the visa application was made within six months of the nomination's approval.

The Tribunal reasoned that the employer's application for nomination approval had been reviewed. On 13 September 2019, the Tribunal set aside the Department's refusal and substituted a decision to approve the nomination under subregulation 5.19(3). As the nomination had been approved, the Tribunal concluded that the first named applicant met the criterion specified in clause 186.223(2).

Consequently, the Tribunal remitted the visa applications for reconsideration by the Minister. The direction was that the first named applicant had met the criteria under clause 186.223(2) of Schedule 2 to the Regulations, and the Minister was to consider the remaining visa criteria, including those pertaining to secondary applicants.