Sansoni (Migration)

This matter concerned an appeal by Mithra Investments Pty Ltd, as trustee for The Samaranayake Family Trust, against a decision by the Department of Immigration to refuse to approve a nomination for a Subclass 186 Employer Nomination Scheme visa, Temporary Residence Transition stream. The appeal was heard by the Tribunal, with Member Mary Sheargold presiding.

The central legal issue before the Tribunal was whether the nomination for the position of Graphic Designer, in respect of the first named applicant, had been approved and met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations. This clause requires, among other things, that the nomination has been approved, not subsequently withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons (or such information can be disregarded), that the position remains available to the applicant, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that the employer's application for approval of the nomination had been made, and that on 3 October 2019, the Tribunal had set aside the Department's refusal and substituted a decision to approve the nomination under subregulation 5.19(3). Consequently, the Tribunal concluded that the first named applicant met the requirement of clause 186.223(2).

Given these findings, the Tribunal remitted the visa applications for reconsideration by the Minister, with a direction that the first named applicant satisfied clause 186.223(2). The Minister was to consider the remaining criteria for the visa, including those pertaining to the second named applicant.