Walia (Migration)

The Administrative Appeals Tribunal considered a review application concerning an Employer Nomination (Permanent) (Class EN) visa, specifically the Temporary Residence Transition stream of the Subclass 186 (Employer Nomination Scheme) visa. The applicant's nominating employer, KDM Group of Companies Pty Ltd, had initially had its nomination for the position of Cook refused by the Department. The Tribunal was tasked with determining whether the nomination for the position met the relevant legislative criteria.

The primary legal issue before the Tribunal was whether the nomination for the position of Cook, in relation to the first named visa applicant, had been approved and had not been subsequently withdrawn, as required by clause 186.223(2) of Schedule 2 to the Migration Regulations 1994. This clause, as applicable, necessitates that the Minister has approved the nomination, that it has not been withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons (or such information is reasonable to disregard), that the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 the employer's nomination for the position of Cook had been approved by the Tribunal on review on 18 October 2019, when the Tribunal set aside the Department's refusal decision and substituted a decision to approve the nomination. As this approved nomination satisfied the requirements of clause 186.223(2), the Tribunal concluded that the first named applicant met this specific criterion. Consequently, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining criteria for the visa, including those pertaining to any secondary visa applicants.