Whyte (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 sought review of a decision concerning the approval of a nomination for the occupation of Plumber (General). The Tribunal, constituted by Member Karen McNamara, was required to determine whether the applicant met the requirements of clause 186.223(2) of Schedule 2 to the Migration Regulations 1994.

The central legal issue was whether the nomination for the applicant's position as a Plumber (General) had been approved and had not been subsequently withdrawn, as required by clause 186.223(2). This clause, in conjunction with other subclauses, mandates that the nominated position must be the subject of an approved nomination that identifies the visa applicant, that the nomination has not been withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that the nominating employer, Whyte Civil Pty Ltd, had initially had its nomination refused by the Department. However, following a review by the Tribunal in a separate proceeding (AAT Case No. 1901944), the Department's decision was set aside, and a new decision was substituted to approve the nomination under regulation 5.19. Consequently, the Tribunal concluded that the applicant satisfied clause 186.223(2).

Given this finding, the Tribunal determined that the appropriate course of action was to remit the visa application to the Minister for reconsideration of the remaining visa criteria. The Tribunal directed that the applicant met clause 186.223(2) for the Subclass 186 visa.