Seidenhefter (Migration)

This matter concerned an application for a Subclass 186 Employer Nomination Scheme visa, Temporary Residence Transition stream. The applicant was the subject of a nomination by an employer. The dispute arose because the Department had initially refused to approve the nomination, but the Administrative Appeals Tribunal (the Tribunal) subsequently set aside that decision and substituted a decision approving the nomination. The Minister sought review of the Tribunal's decision.

The primary legal issue before the Tribunal was whether the Minister had approved the nomination, as required by clause 186.223 of Schedule 2 to the relevant regulations. This clause, as applicable, stipulated several conditions, including that the nomination must have been approved and not subsequently withdrawn, that there must be no adverse information known to Immigration about the nominator or associated persons (or such information must be reasonable to disregard), that the nominated position must still be available to the applicant, and that the visa application must have been made within six months of the nomination's approval.

The Tribunal reasoned that its previous decision in case number 1733059, where it set aside the Department's refusal and substituted an approval of the nomination, meant that the nomination had indeed been approved. The Tribunal was satisfied, based on substantial further information provided by the nominator, that there was no adverse information concerning the nominator or associated persons, and that the nominated position remained available to the applicant under a written employment contract for a minimum of two years. Furthermore, the Tribunal found that the visa application was made within the six-month timeframe following the nomination's approval.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant met the criteria under clause 186.223 of Schedule 2 to the Regulations.