Schillaci (Migration)

The Administrative Appeals Tribunal considered a migration matter concerning an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, specifically the Temporary Residence Transition stream. The dispute arose from the refusal of the employer's nomination application, which was subsequently set aside by the Tribunal. The applicant sought review of this refusal.

The primary legal issue before the Tribunal was whether the employer's nomination for the position had been approved, as required by clause 186.223 of the Migration Regulations. This clause necessitates that the nominated position be the subject of an approved nomination application that identifies the visa applicant, that the nomination has not been withdrawn and no adverse information is known to the Department of Immigration, that the position remains available, and that the visa application was lodged within six months of the nomination's approval.

The Tribunal reasoned that it must make findings of fact on disputed material matters, including assessing credibility. In this instance, the Tribunal relied on its previous decision of 5 December 2019, which set aside the Department's refusal and substituted a decision approving the appointment for the position of Chef. Based on the evidence presented, the Tribunal was satisfied that the approved position matched the one in the relevant nomination application and the visa application declaration, thus meeting subclause 186.223(1). Furthermore, the Tribunal found that the nominator was the employer, the appointment had not been withdrawn and remained available, and the visa application was lodged within the prescribed six-month period after the nomination approval, satisfying subclauses 186.223(2) through (5).

Consequently, the Tribunal found that the visa applicant met the requirements of clause 186.223. The Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria, with a direction that the applicant satisfies clause 186.223.