STRAMBACI (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa, Temporary Residence Transition stream, by an applicant identified in a nomination by Hi-Tek Fittings Pty Ltd. The core dispute revolved around whether the applicant met the requirements of clause 186.223(2) of Schedule 2 to the Regulations, which mandates that the position to which the application relates must be the subject of an approved nomination. The Administrative Appeals Tribunal (AAT) considered the decision of a delegate who had previously refused to approve the nomination.

The primary legal issue before the Tribunal was to determine if the applicant satisfied clause 186.223(2) of the Regulations, specifically concerning the requirement for an approved nomination. This clause requires that for applicants in the Temporary Residence Transition stream, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and the nominated position must be the one that was the subject of the declaration for the current visa application. Crucially, the clause also requires that the nomination itself has been approved.

The Tribunal reasoned that while the Department had initially refused to approve the nomination on 25 July 2017, leading to the refusal of the applicant's visa application, Hi-Tek Fittings Pty Ltd subsequently applied for a review of this decision. On 5 March 2018, the Tribunal set aside the delegate's refusal and made a decision approving the associated nomination. As the relevant nomination had now been approved, the Tribunal concluded that the applicant met the criterion under clause 186.223(2).

Consequently, the Tribunal remitted the application for the Employer Nomination (Permanent) (Class EN) visa for reconsideration by the Minister. The Tribunal directed that for the purposes of this reconsideration, the applicant was to be considered as meeting the criteria under clause 186.223(2) of Schedule 2 to the Regulations.