Wen (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream. The applicant, a holder of a Subclass 457 visa, had their nominating employer's application for approval of the position of real estate representative refused by the Department. The employer subsequently applied to the Tribunal for a review of this decision. The Tribunal, constituted by Member Cathrine Burnett-Wake, was required to determine whether the nomination was approved and met the relevant criteria.

The primary legal issue before the Tribunal was whether the nomination for the applicant's position as a real estate representative was approved and satisfied clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause requires, among other things, that the nominated position is the subject of an approved nomination that has not been withdrawn, that there is no adverse information known to Immigration concerning the nominator or associated persons, that the position remains available to the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.

The Tribunal found that on 28 March 2019, it had set aside the Department's refusal and substituted a decision to approve the nomination under subregulation 5.19(3). As the nomination had been approved and not subsequently withdrawn, and given the applicant was a 457 visa holder at the time of nomination, the Tribunal concluded that clause 186.223(2) was met. Consequently, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria.