RAFIQ (Migration)

This matter concerned an appeal before the Tribunal regarding an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) visa under the Temporary Residence Transition stream. The primary applicant sought this visa based on a nomination by Oasis Corporation Australia Pty Ltd for the position of Customer Service Manager. The dispute arose from the Department's refusal of the nomination, which was subsequently reviewed by the Tribunal.

The central legal issue before the Tribunal was whether the relevant nomination for the primary applicant had been approved, as required by clause 186.223 of the applicable regulations. This clause mandates that the nominated position must have been approved, not subsequently withdrawn, and that certain conditions regarding adverse information, position availability, and application timing must be met. A secondary issue concerned the eligibility of the second applicant, a family member, who depended on the primary applicant satisfying the criteria for the Subclass 186 visa.

The Tribunal reasoned that the Department's initial refusal of the nomination was flawed. It noted that the nominator had applied for a review of this refusal, and on 26 July 2019, the Tribunal had set aside the Department's decision and substituted an approval for the nomination. Consequently, the Tribunal found that the primary applicant met the requirements of clause 186.223(2). However, the Tribunal could not make a direction that the second applicant met the family member criteria because, at the time of the decision, the primary applicant did not yet hold a Subclass 186 visa.

Accordingly, the Tribunal remitted the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration. It directed that the primary applicant met criterion cl.186.223(2) of Schedule 2 to the Regulations. The case of the second named applicant was referred back to the Department for fresh consideration.