Sayal (Migration)

This matter concerned applications for Employer Nomination (Permanent) (Class EN) visas, specifically under the Temporary Residence Transition stream of Subclass 186. The primary applicant was nominated for the occupation of mechanical engineering draftsperson. The dispute centred on whether the applicant met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994. The decision was made by Alan McMurran, a Member of the Tribunal.

The core legal issue before the Tribunal was to determine if the applicant satisfied the criteria under subregulation 186.223, which requires, among other things, that the nominated position has been approved, has not been withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available to the applicant, and that the visa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 also considered whether the secondary applicant, the primary applicant's spouse or de facto partner, met the requirements of subregulation 186.311.

The Tribunal found that the nomination for the mechanical engineering draftsperson position had been approved on 21 August 2019 and had not been subsequently withdrawn. It was satisfied that no adverse information was known to Immigration regarding the nominator or associated persons, or that any such information was reasonable to disregard. Furthermore, the Tribunal was satisfied that the position remained available to the applicant and that the visa application was lodged within the prescribed six-month period after the nomination's approval. Consequently, the Tribunal concluded that clause 186.223 was met for the primary applicant and that the secondary applicant met the requirements of clause 186.311.

Given these findings, the Tribunal remitted the visa applications to the Minister for reconsideration. The remittal was accompanied by a direction that the Tribunal had found the first named applicant met the criteria under clause 186.223 and the second named applicant met the criteria under clause 186.311, leaving the remaining criteria for the Minister to assess.