Tran (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 Employer Nomination Scheme visa under the Temporary Residence Transition stream. The applicant sought review of a decision concerning their nomination. The Tribunal, constituted by Amanda Mendes Da Costa, was required to determine whether the applicant had an approved nomination pursuant to clause 186.223 of Schedule 2 to the Migration Regulations 1994.

The central legal issue before the Tribunal was the interpretation and application of clause 186.223, which sets out the requirements for an approved nomination in the Temporary Residence Transition stream. This clause mandates that the nominated position must be the subject of an approved nomination application that identifies the visa applicant, has not been withdrawn, and for which there is no adverse information known to Immigration, or such information is reasonable to disregard. Furthermore, the position must remain available to the applicant, and the visa application must be lodged within six months of the nomination's approval.

The Tribunal reasoned that on 5 December 2018, a decision was made approving the applicant's nominated position with their employer under the Temporary Residence Transition stream, pursuant to subregulation 5.19(3). Consequently, the Tribunal concluded that the applicant had met the criteria under clause 186.223. As the primary applicant satisfied this criterion, the Tribunal also found that the second and third applicants, as members of the family unit, met the criteria for the Subclass 186 visa.

The Tribunal remitted the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration. The remittal was accompanied by a direction that the first named applicant had met the criteria under clause 186.223 of Schedule 2 to the Regulations.