Tsai (Migration)

The Administrative Appeals Tribunal considered a dispute concerning 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 to refuse the visa.

The primary legal issue before the Tribunal was whether the applicant met the criteria under clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause requires, among other things, that the nominated position has been approved and not withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons, that the position remains available to the applicant, and that the visa application was made within six months of the nomination approval.

The Tribunal reasoned that it had made a decision to set aside the refusal of the nomination and substitute an approval for the nomination in a separate proceeding. Having regard to the available information, the Tribunal found that the nomination was approved and had not been withdrawn, there was no adverse information, the position remained available, and the visa application was lodged within the prescribed timeframe. Consequently, the Tribunal concluded that clause 186.223 was satisfied.

The Tribunal remitted the visa applications for reconsideration by the Minister, with a direction that the first applicant meets the criteria under clause 186.223. The decision noted that if the primary applicant is granted the visa, the other applicants may satisfy the requirements as members of his family unit.