Walker (Migration)

This matter concerned an application for review by Mr Walker regarding his Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) visa under the Temporary Residence Transition stream. The core dispute revolved around the approval of the nomination for Mr Walker's position, which had initially been refused by a delegate but was subsequently approved by the Administrative Appeals Tribunal. The Tribunal, constituted by Member Kate Timbs, was required to determine whether Mr Walker met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994.

The Tribunal was tasked with assessing whether the nominated position met the criteria outlined in clause 186.223, which included that the nomination had been approved and not withdrawn, that there was no adverse information known to the Department or that such information was reasonable to disregard, that the position remained available to the applicant, and that the visa application was made within six months of the nomination's approval. The Tribunal considered the company's initial nomination application, the delegate's refusal, and its own prior decision to set aside that refusal and approve the nomination.

In its reasoning, the Tribunal found that Mr Walker satisfied the criterion that the nomination had been approved, as it had previously set aside the delegate's refusal and substituted a decision to approve the nomination. The Tribunal was satisfied that the nomination had not been withdrawn, that no relevant adverse information was known to migration authorities, and that the position remained available to Mr Walker. Furthermore, the Tribunal found that Mr Walker had applied for the visa before the nomination was approved. Based on these findings, the Tribunal concluded that Mr Walker met the criteria in clause 186.223.

Consequently, the Tribunal remitted the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration with the direction that Mr Walker meets the criteria for a Subclass 186 visa in clause 186.223. The decision noted that secondary applicants would satisfy clause 186.311 if Mr Walker's visa was granted on this basis, and the Department would then consider their eligibility for the visa.