POTHMANN (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding a Subclass 186 (Employer Nomination Scheme) visa application under the temporary residence transition stream. The core dispute revolved around whether the applicants were the subject of an approved nomination under regulation 186.223(2) of the Migration Regulations 1994 and whether they met the requirements of regulation 186.223. The decision for the secondary applicant, as a member of the family unit of the primary applicant, was contingent on the outcome for the primary applicant.

The Tribunal was required to determine if the nomination for the position had been approved and not subsequently withdrawn, if there was no adverse information known to the Department regarding the nominator or associated persons, or if such information was reasonable to disregard. Furthermore, the Tribunal had to ascertain if the nominated position remained available to the applicant and if the visa application was lodged within six months of the nomination's approval. The Tribunal also needed to consider the criteria applicable to the secondary applicant as a member of the family unit.

The Tribunal found that the nomination had been approved following a previous review and decision on 28 May 2020, and that the nomination had not been withdrawn. It was satisfied that no adverse information was known to the Department concerning the nominator or associated persons, and that the nominated position of arborist remained available to the applicant. The Tribunal was also satisfied that the visa application was made within the prescribed six-month timeframe after the nomination approval. Consequently, the Tribunal concluded that the primary applicant met the criteria under clauses 186.223(2) and 186.223.

Given these findings, the Tribunal remitted the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration. The direction was that the first named applicant met the specified criteria for the Subclass 186 visa, and the application by the secondary applicant was to be considered for the remaining criteria.