Patel (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 primary applicant, a Motor Mechanic, had an approved nomination from their employer, Ecal Auto Care Pty Ltd. The dispute arose when the Department initially refused to approve the nomination, leading to a review by the Tribunal. The Tribunal, constituted by Cathrine Burnett-Wake, was required to determine whether the applicant met the criteria for the visa, particularly concerning the approved nomination.

The central legal issue before the Tribunal was whether the applicant satisfied clause 186.223 of Schedule 2 to the Regulations, which outlines the requirements for an approved nomination in the Temporary Residence Transition stream. This clause necessitates 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position be the subject of an approved nomination that identifies the visa applicant, that the nomination has not been withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available, and that the visa application was made within six months of the nomination's approval. The Tribunal also considered the applications of the second and third named applicants, who were family members of the primary applicant.

The Tribunal reasoned that the employer's nomination for the Motor Mechanic position had been approved by the Tribunal on 26 November 2018, setting aside the Department's earlier refusal. This approval meant that the primary applicant met the requirement under clause 186.223(2). Consequently, the Tribunal determined that the appropriate course of action was to remit the visa application to the Minister for reconsideration of the remaining criteria. Furthermore, as the primary applicant's application was being remitted with a finding that he met clause 186.223(2), the applications of the second and third named applicants, as family members, were also to be reconsidered in full.