Wauchope (Migration)

This matter concerned an appeal by Mr Jonathan Wauchope, and his family members Victoria Wauchope and Kane Chang-Kai Wauchope, against the refusal of their applications for a Subclass 186 (Employer Nomination Scheme) visa (Direct Entry stream). The primary applicant, Mr Wauchope, sought to have his visa application reconsidered after the initial refusal by the delegate, which was based solely on the grounds that the nomination by MIQ for his position was not approved. The secondary applicants' applications were also refused, though it was accepted they were members of the family unit. The case was heard by Deputy President J.L Redfern PSM.

The central legal issue before the Tribunal was whether the criteria set out in clause 186.233 of the Migration Regulations 1994 were satisfied. Specifically, the Tribunal was required to determine if the nomination by MIQ for Mr Wauchope's position had been approved, and consequently, whether the other requirements of clause 186.233 could be assessed. The Tribunal also needed to consider the eligibility of the secondary applicants, who could only satisfy their visa criteria if the primary applicant met all the requirements for his visa.

The Deputy President reasoned that a threshold issue was the approval of the nomination. In a related proceeding, the Tribunal had approved MIQ's nomination for Mr Wauchope's position, and there was no evidence of subsequent withdrawal. Therefore, the Tribunal found that the criteria in clauses 186.233(3) and (4) were satisfied. The Tribunal then proceeded to assess the remaining criteria in clause 186.233, finding that MIQ was the nominating employer (cl 186.233(2)), there was no adverse information known to the Department about MIQ or Mr Wauchope (cl 186.233(4A)), the position remained available to Mr Wauchope (cl 186.233(5)), and the visa application was made within the prescribed timeframe after nomination approval (cl 186.233(6)).

Given these findings, the Tribunal concluded that the requirements of clause 186.233 were met. The Tribunal remitted the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant, Mr Wauchope, meets the criteria in cl 186.233 for a Subclass 186 visa. The Minister was directed to consider the remaining criteria for the visa.