TAN (Migration)

This matter concerned applications for Employer Nomination (Permanent) (Class EN) visas, specifically the Subclass 186 (Employer Nomination Scheme) visa under the Direct Entry stream. The primary applicant, Ms May Ying Tan, sought this visa, with her family members applying as members of her unit. The core dispute revolved around whether the nominated position of Fleet Manager met the requirements of clause 186.233(3) of Schedule 2 to the relevant regulations. The decision was made by Karen McNamara, a Member of the Tribunal.

The legal issue before the Tribunal was whether the applicant met the requirements of clause 186.233(3) of Schedule 2 to the Regulations, which pertains to the approval of a nominated position for the Direct Entry stream of the Subclass 186 visa. This clause requires, among other things, that the nominated position be approved, not withdrawn, still available to the applicant, and that the visa application be made within six months of the nomination's approval. The Tribunal also considered the implications of the nomination being initially refused by the Department and subsequently approved by the Tribunal itself.

The Tribunal reasoned that the nominating employer, P&J Group (Australia) Pty Ltd, had applied for approval of a nomination for the Fleet Manager position. Although this nomination was initially refused by the Department, leading to the refusal of the visa applications, P&J Group (Australia) Pty Ltd successfully sought review of that decision. On 14 July 2021, the Tribunal set aside the Department's refusal and substituted a decision to approve the nomination. Consequently, the Tribunal found that the applicant satisfied clause 186.233(3).

Given these findings, the Tribunal determined that the appropriate course of action was to remit the visa applications to the Minister for reconsideration of the remaining criteria. The Tribunal directed that the first named applicant, Ms May Ying Tan, meets the requirements of clause 186.233(3) of Schedule 2 to the Regulations. The applications of the other named applicants, as members of Ms Tan's family unit, would be determined by reference to the outcome of her application.