Vasilev (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Subclass 186 (Employer Nomination Scheme) visa, Temporary Residence Transition stream, by an applicant nominated by Central Coast Winery Pty Ltd for the position of Apiarist. The dispute centred on whether the nomination for the position was approved, a prerequisite for the visa application.

The primary legal issue before the Tribunal was to determine if the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994 were met, specifically concerning the approval of the employer's nomination. This clause requires that the Minister has approved the nomination, that it has not been withdrawn, that there is no adverse information known to Immigration or that such information is reasonable to disregard, that the position is still available to the applicant, and that the visa application is made within six months of the nomination approval.

The Tribunal found that while the Department of Home Affairs had initially refused the nomination application, the Tribunal itself had previously set aside that refusal and substituted a decision to approve the nomination. Consequently, the Tribunal concluded that clause 186.223(2) was satisfied. As the other applicants were family members of the primary applicant, their applications were contingent on the primary applicant's outcome.

The Tribunal remitted the visa application to the Minister for reconsideration, directing that the first-named applicant met the criteria under clause 186.223(2) of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the visas.