Phan (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 Temporary Residence Transition stream, for a Metallurgical or Materials Technician. The applicant's nominating employer, Wentworth Metals Group Pty Ltd, had initially had its nomination refused by the Department. The Administrative Appeals Tribunal (AAT) subsequently reviewed this decision, setting aside the Department's refusal and substituting a decision to approve the nomination. The AAT Member, Catherine Carney-Orsborn, was required to determine whether the primary applicant met the criteria for the visa and to consider the status of secondary applicants.

The central 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 that the nominated position must be the subject of an approved nomination application that identifies the visa applicant, that the nomination has not been withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons (or such information is reasonable to disregard), that the position remains available to the applicant, and that the visa application was made within six months of the nomination's approval. A further issue arose concerning the Tribunal's jurisdiction in relation to secondary applicants.

The Tribunal found that the primary applicant met clause 186.223, being satisfied that the employer was the nominator, no adverse information was known, the visa applicant was identified as a Subclass 457 visa holder, the nomination had not been withdrawn and continued to meet the criteria for approval, the position was the subject of the required declaration, the appointment remained available, and the visa application was lodged within the specified timeframe. Regarding the secondary applicants, the Tribunal determined it had no jurisdiction as they were not in Australia at the time the review application was lodged with the AAT.

Consequently, the Tribunal remitted the Employer Nomination (Permanent) (Class EN) visa applications for reconsideration. The direction was that the first named applicant met clause 186.223 of Schedule 2 to the Regulations, while the Tribunal confirmed its lack of jurisdiction concerning the secondary applicants.