Peng (Migration)

The Administrative Appeals Tribunal considered an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), specifically the Temporary Residence Transition stream. The applicant sought review of a decision concerning their eligibility for the visa, with the central dispute revolving around whether the applicant was the subject of an approved nomination.

The Tribunal was required to determine whether the applicant met the requirements of clause 186.223 of the Migration Regulations 1994. This clause mandates that the nominated position must be the subject of an approved nomination application that identifies the visa applicant, and that the position must be the one declared as part of the current visa application. Further, the nomination must have been approved and not withdrawn, with no adverse information known to the Department of Immigration concerning the nominator or associated persons, or it must be reasonable to disregard such information. Additionally, the position must remain available to the applicant, and the visa application must have been lodged within six months of the nomination's approval.

The Tribunal reasoned that following the approval of the nomination by the Tribunal itself in a prior decision, the applicant now satisfied all the stipulated requirements of clause 186.223. The Tribunal found that the nomination had been approved, had not been withdrawn, and that the applicant met the conditions regarding adverse information, position availability, and the time limit for visa application.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant had met the criteria under clause 186.223. The Minister was to proceed to consider the remaining criteria for the grant of the Subclass 186 visa.