Wang (Migration)

The Administrative Appeals Tribunal (AAT) considered a migration matter involving an applicant seeking an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream. The dispute centred on whether the applicant met the criteria for this visa subclass, specifically concerning an approved nomination by FLAMING MT, PTY LTD.

The primary legal issue before the Tribunal was to determine if the applicant satisfied clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause outlines several requirements relating to the nominated position, including that the nomination must be approved, not subsequently withdrawn, and that the position must still be available to the applicant. Additionally, the visa application must have been made within six months of the nomination's approval, and there must be no adverse information known to Immigration about the nominator or associated persons, or such information must be disregarded.

The Tribunal reasoned that while the nomination had initially been refused, subsequent review by the Tribunal, considering additional material, resulted in the nomination being approved. The Tribunal found that the applicant was identified in the nomination as a Subclass 457 visa holder, and based on oral evidence, the position remained available and had not been withdrawn. Furthermore, the Tribunal was satisfied that the visa application was lodged within the six-month timeframe following the nomination's approval.

Consequently, the Tribunal concluded that the applicant met criterion 186.223. The Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant satisfies clause 186.223 of Schedule 2 to the Regulations.