Voznyuk (Migration)

The Administrative Appeals Tribunal considered a migration matter involving an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), specifically the Temporary Residence Transition stream. The dispute concerned whether a dental technician position was the subject of an approved nomination, as required by the visa criteria, and the jurisdiction of the Tribunal in relation to a second applicant.

The primary legal issue before the Tribunal was to determine if the first applicant met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994, which pertains to an approved nomination for the Subclass 186 visa. A secondary issue was whether the Tribunal had jurisdiction to consider the application for review made by the second named applicant, given their physical presence in the migration zone at the time the review application was lodged.

The Tribunal reasoned that clause 186.223(2) was satisfied because the nomination for the dental technician position, initially refused by the Department, was subsequently approved by the Tribunal on 17 November 2021. This approval meant that the nomination was valid for the purpose of the visa application. Regarding the second applicant, the Tribunal found that section 347(3) of the Migration Act 1958 requires a non-citizen to be physically present in the migration zone when lodging an application for review of a decision described in section 338(2). As the Department's records indicated the second applicant was not in the migration zone when their review application was lodged, the Tribunal concluded it lacked jurisdiction over that part of the matter.

Consequently, the Tribunal remitted the visa application for reconsideration by the Minister, directing that the first named applicant meets criterion 186.223(2). The Tribunal also declared that it did not have jurisdiction in the matter of the second named applicant.