VAHT (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) under the Temporary Residence Transition stream. The applicant sought review of a decision concerning their eligibility for the visa, with the core dispute revolving around whether the applicant was the subject of an approved nomination. The decision was made by the Tribunal.

The legal issue before the Tribunal was to determine whether the applicant met criterion 186.223 of Schedule 2 to the Regulations, which pertains to the approval of a nomination for the visa. This criterion requires, among other things, that the nominated position is the subject of an approved nomination that has not been withdrawn, that there is no adverse information known to Immigration concerning the nominator or associated persons, that the position remains available to the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's approval.

The Tribunal found that on 20 April 2020, it had set aside a delegate's decision and substituted it with a decision approving the nomination made by The Trustee for the Bailey Family Trust for the applicant. The Tribunal was satisfied that this nomination had not been withdrawn and that all other sub-requirements of clause 186.223 were met, including the absence of adverse information, the continued availability of the position, and the timely lodgement of the visa application.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant had met criterion 186.223. The Minister was to proceed to consider the remaining criteria for the grant of the Subclass 186 visa.