Tan (Migration)

The Administrative Appeals Tribunal considered a migration matter involving an applicant for a Subclass 186 Employer Nomination Scheme visa, Temporary Residence Transition stream. The applicant sought review of a decision to refuse to approve the nomination for the position of Organisation and Methods Analyst. The nominating employer, John Montagu Pty Ltd Atf John Montagu Unit Trust, had its nomination initially refused by the Department of Immigration and Border Protection.

The primary legal issue before the Tribunal was whether the applicant satisfied criterion cl.186.223(2) of the Migration Regulations 1994, which requires the Minister to have approved the nomination. This criterion further necessitates that the nomination has been approved and not withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons, that the position remains available, and that the visa application was made within six months of the nomination's approval. The Tribunal also considered the refusal of a secondary visa applicant, Mr Guo Long Joshua Lee, based on cl.186.311, which relates to family unit members applying in conjunction with a primary applicant.

The Tribunal reasoned that the nomination had been approved by the Tribunal itself, setting aside the Department's refusal, and had not been withdrawn. It found no adverse information concerning the nominator or their associates. The existence of a recent employment contract indicated the position remained available, and the visa application date of 11 November 2018 was within the six-month timeframe following the nomination's approval. Consequently, the Tribunal concluded that cl.186.223 was satisfied.

Given these findings regarding the nomination, the Tribunal remitted the visa application to the Minister for consideration of the remaining visa criteria. The Tribunal also noted that the secondary applicant's refusal was based on a separate criterion, cl.186.311.