Sittisupaphong (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) visa under the temporary residence transition stream. The applicant sought review of a decision concerning the approval of a nominated position. The Administrative Appeals Tribunal, constituted by Member Mark O'Loughlin, was tasked with determining whether the applicant met the relevant criteria for the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause outlines the requirements for the nominated position, including that it must be the subject of an approved nomination that identifies the visa applicant, that the nomination has not been withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available, and that the visa application was lodged within six months of the nomination's approval.

The Tribunal found that the requirements of subclauses 186.223(1), (2), (3), (4), and (5) were met. Crucially, the Tribunal had previously set aside a decision that refused to approve the nomination and substituted a decision approving it on 12 February 2021. The Tribunal was satisfied that the nomination had not been withdrawn, the position remained available, and the visa application was made within the prescribed six-month period following the nomination's approval.

Consequently, the Tribunal remitted the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration by the Minister, with a direction that the applicant meets the criteria specified in clause 186.223 of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the visa.