Soga (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream, for a cook. The applicant's employer, Bangs & Chiko Pty Ltd, had lodged a nomination application which was initially refused by a delegate of the Minister for the Department of Home Affairs. The employer subsequently applied for review of this refusal with the Tribunal. The Tribunal was required to determine whether the position to which the visa application related was the subject of an approved nomination that identified the visa applicant.

The primary legal issue before the Tribunal was the interpretation and application of clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause sets out the requirements for an approved nomination in the Temporary Residence Transition stream, including that the nomination must have been approved, not withdrawn, and that the position must still be available to the applicant. Additionally, the visa application must have been made within six months of the nomination's approval, and there must be no adverse information known to Immigration about the nominator or associated persons, or such information must be reasonably disregarded.

The Tribunal found that the nomination lodged by Bangs & Chiko Pty Ltd had been approved by the Tribunal on 15 November 2019, after it had set aside the initial refusal decision. As the nomination was approved and had not been withdrawn, and given the other conditions of clause 186.223 were satisfied, the Tribunal concluded that this criterion was met. Consequently, the Tribunal remitted the visa applications to the Minister for reconsideration, directing that the first named applicant met clause 186.223 of Schedule 2 to the Regulations.