SHAHRIAR (Migration)

This matter concerned an application for a Subclass 186 Employer Nomination Scheme visa. The applicant, Mr. Shahriar, sought review of a decision concerning his visa application. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria for the visa, specifically clause 186.223 of Schedule 2 to the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant was the subject of an approved nomination for the Subclass 186 visa. This involved assessing whether the nominated position met the requirements of clause 186.223, including that the nomination had been approved, had not been withdrawn, and that the position remained available to the applicant. The Tribunal also considered whether the visa application was made within the prescribed timeframe after the nomination approval.

The Tribunal considered evidence from the applicant regarding his arrival in Australia and his work history with the nominator. Crucially, the Tribunal noted that subsequent to the hearing, it had decided to set aside the original refusal of the nomination and substituted a decision approving the nomination. Based on this, the Tribunal found that the applicant was the subject of an approved nomination and therefore met the requirements of sub-regulation 186.223(2). The Tribunal was also satisfied that the applicant met the other remaining criteria under clause 186.223.

Given these findings, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining criteria for the Subclass 186 visa. The Tribunal directed that the applicant met the criteria under clause 186.223 and clause 186.311 of Schedule 2 to the Regulations.