Tonts (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, subclass 186, Temporary Residence Transition stream. The applicant's employer sought review of a decision that had refused to approve its nomination of the applicant for the visa. The Administrative Appeals Tribunal (AAT) considered the employer's application for review.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994, which pertains to the nomination of a position for the visa. Specifically, the Tribunal had to determine if the applicant was the subject of an approved nomination that had not been withdrawn, if there was no adverse information concerning the nominator or associated persons, if the position remained available, and if the visa application was made within the prescribed timeframe after the nomination approval.

The Tribunal reasoned that while the applicant was not the subject of an approved nomination at the time of the initial decision, the employer's subsequent review application resulted in the AAT setting aside the Department's decision and approving the nomination. Based on the evidence provided by the employer during that review, the Tribunal was satisfied that all sub-criteria of clause 186.223 were met. Consequently, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria. The application of the second applicant, who applied as a family member, was to be determined by reference to the outcome of the first applicant's application.