Xue (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa. The primary dispute before the Tribunal was whether the relevant nomination had been approved as required by clause 186.223 of the Migration Regulations. The applicant had been identified in an employer nomination made by Jiu Jiu Pty Ltd.

The Tribunal was required to determine if the nomination met the criteria outlined in clause 186.223, which included that the position be nominated in an application seeking to meet subregulation 5.19(3), that the applicant be identified as a Subclass 457 visa holder in relation to that nomination, and that a specific declaration was made in the visa application. Crucially, the Tribunal had to consider whether the nomination had been approved, had not been withdrawn, and if there was any adverse information concerning the nominator or associated persons. Furthermore, the Tribunal needed to assess if the nominated position remained available to the applicant and if the visa application was lodged within six months of the nomination's approval.

The Tribunal reasoned that while the Department had initially refused the employer nomination on 28 August 2018, the Tribunal had subsequently set aside that decision on 19 November 2020 and substituted a decision approving the nomination. As the nomination had now been approved, the Tribunal found that the first named applicant met the requirements of clause 186.223(2). Consequently, the Tribunal determined that the appropriate course was to remit the visa application for reconsideration by the Minister, directing that the first named applicant met clause 186.223 and that the remaining criteria for her visa should be reconsidered. The application of the second named visa applicant was also to be reconsidered in full.