Tyshynski (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa, specifically under the temporary residence transition stream. The applicant, who had been employed by the nominator since March 2015 on a Subclass 457 visa, sought to have his employer's nomination for a Sales and Marketing Manager position approved. The Administrative Appeals Tribunal (AAT) was required to determine whether an approved nomination existed in respect of the applicant, as stipulated by clause 186.223 of the Migration Regulations.

The primary legal issue before the Tribunal was whether the applicant's nominating employer had an approved nomination for the position of Sales and Marketing Manager, which identified the applicant. This involved assessing whether the nomination met the requirements of clause 186.223, including that the position was the subject of an approved nomination application, that the nomination had been approved and not withdrawn, that there was no adverse information concerning the nominator, that the position remained available, and that the visa application was made within six months of the nomination approval.

The Tribunal found that the applicant was genuinely employed in the nominated position and that his employer continued to require his services. Crucially, the Tribunal had previously set aside the Department's decision to refuse the nomination and substituted a decision to approve it. The evidence indicated that the nominator would still employ the applicant, the visa application was lodged within the required timeframe, and there was no adverse information regarding the nominator. Consequently, the Tribunal concluded that clause 186.223 was satisfied.

Given these findings, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant met the criteria under clause 186.223 of Schedule 2 to the Migration Regulations.