Wang (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Temporary Residence Transition stream of Subclass 186. The applicant, a welder, had their nomination initially refused by the Department but subsequently approved by the Tribunal on review. The dispute before the Tribunal was whether the applicant met the criteria for the visa, particularly concerning the approved nomination.

The primary legal issue before the Tribunal was to determine whether the applicant satisfied clause 186.223 of the Migration Regulations 1994, which outlines the requirements for an approved nomination in the Temporary Residence Transition stream. This clause necessitates that the nominated position is the subject of an approved nomination that identifies the visa applicant, that the nomination has not been withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available to the applicant, and that the visa application was made within six months of the nomination's approval. A secondary issue arose regarding the eligibility of the second and third named applicants, who were family members of the primary applicant.

The Tribunal reasoned that the nomination, having been approved by the Tribunal on review, met the requirements of clause 186.223(2). Given this finding, the Tribunal concluded that the matter should be remitted to the Minister for consideration of the remaining visa criteria for the primary applicant. However, the Tribunal found itself unable to direct that the second and third named applicants met the family unit criteria under clause 186.311, as the primary applicant did not hold a Subclass 186 visa at the time of the Tribunal's decision. Consequently, the Tribunal referred the cases of the second and third named applicants back to the Department for fresh consideration.