Tran (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream. The applicant's nominating employer, Unique Nails & Beauty, had initially applied for approval of the nominated position of Hair or Beauty Salon Manager, which the Department of Home Affairs refused. The employer sought review of this decision before the Tribunal. The Tribunal, constituted by Member Sheridan Aster, considered the employer's nomination and the applicant's visa application.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of the Migration Regulations 1994, specifically concerning the approval of the employer's nomination. This clause requires that the nominated position be approved, not subsequently withdrawn, that there is no adverse information concerning the nominator or associated persons (or such information can be disregarded), that the position remains available to the applicant, and that the visa application was made within six months of the nomination's approval.

The Tribunal reasoned that on 1 November 2023, it had set aside the Department's refusal and substituted a decision to approve the nomination. As this approval had not been withdrawn, and based on the information and evidence presented, the Tribunal was satisfied that there was no adverse information regarding the nominator or associated persons, and that the position remained available. Furthermore, the visa application was made concurrently with the nomination, thus satisfying the time limit. Having found that clause 186.223 was met, the Tribunal remitted the visa application to the Minister for consideration of the remaining eligibility criteria.