VO (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), specifically the Temporary Residence Transition stream. The dispute arose when the Department refused to approve the nomination for the position of Customer Service Manager, which was then reviewed by the Administrative Appeals Tribunal. The Tribunal, constituted by Member Mary Sheargold, was asked to determine whether the nomination met the relevant criteria.

The primary legal issue before the Tribunal was whether the nomination for the Customer Service Manager position, made by Top Line Services WA Pty Ltd in respect of the first applicant, had been approved and satisfied the requirements of clause 186.223 of Schedule 2 to the Regulations. This clause mandates that the nomination must have been approved, not subsequently withdrawn, and that there is no adverse information known to Immigration about the nominator or associated persons, or that such information can be disregarded. Furthermore, the position must remain available to the applicant, and the visa application must be made within six months of the nomination's approval.

The Tribunal reasoned that the employer had applied for approval of the nomination, and although the Department initially refused it, the Tribunal had, on 1 May 2019, set aside that decision and substituted a decision to approve the nomination. Consequently, the Tribunal found that the first applicant met the requirement of clause 186.223(2). Given this finding, the Tribunal determined that the appropriate course of action was to remit the visa application to the Minister for reconsideration of the remaining criteria, including those pertaining to the second applicant.