WORMALD (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa under the Temporary Residence Transition stream. The applicant sought review of a decision to refuse their nomination. The Tribunal, constituted by Peter Emmerton, was required to determine whether the nomination met the criteria set out in clause 186.223 of Schedule 2 to the relevant regulations.

The primary legal issue before the Tribunal was whether the nomination for the position of Roof Tiler had been approved and satisfied the specific requirements of clause 186.223. This clause mandates that the nominated position must be the subject of an approved nomination application, that the nomination has not been withdrawn, that there is no adverse information concerning the nominator or associated persons (or such information is disregarded), that the position remains available to the applicant, and that the visa application was lodged no more than six months after the nomination was approved.

The Tribunal reasoned that the nomination criteria under clause 186.223 were satisfied. It found that the approved position was consistent with the nomination and visa application declarations. Furthermore, the Tribunal was satisfied that the nomination had not been withdrawn and the position remained available. Crucially, the Tribunal determined that the visa application, lodged on 30 June 2017, was made within six months of the nomination approval on 17 January 2019, thereby meeting the temporal requirement of clause 186.223(5).

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant met the criteria specified in clause 186.223. The Minister was to proceed to consider the remaining criteria for the grant of the visa.