Varga (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) visa under the Temporary Residence Transition stream. The primary applicant sought this visa as a Motor Mechanic (General), supported by an approved nomination. The Tribunal was tasked with determining whether the applicant met the relevant criteria for the visa.

The central legal issue before the Tribunal was whether the first named applicant satisfied the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause outlines several conditions that must be met for a nomination to be valid, including that the nominated position must be the subject of an approved nomination identifying the visa applicant, that the nomination has not been withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available, and that the visa application was lodged within six months of the nomination's approval.

The Tribunal found that the requirements of clause 186.223 were met. It noted that on 17 June 2021, the Tribunal itself had set aside a previous refusal and approved the nomination for the occupation of 'Motor Mechanic (General)'. The Tribunal was satisfied that the nomination had been approved and not withdrawn, no adverse information was known or was reasonable to disregard, the position remained available, and the visa application was made within the prescribed timeframe. Consequently, the Tribunal concluded that the first named applicant met the primary criteria for the visa.

Given these findings, the Tribunal remitted the visa applications for reconsideration by the Minister. The direction was that the first named applicant met clause 186.223, and the application of the second named applicant, as a member of the family unit, should be reconsidered in light of the first applicant satisfying the primary criteria.