Yamamoto (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) visa under the Temporary Residence Transition stream. The applicant sought review of a decision by the Department of Immigration which had refused to approve the nomination for the position of Pastrycook. The review was heard by Member Phoebe Dunn of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223(2) of Schedule 2 to the Migration Regulations 1994, which mandates that the nomination must have been approved by the Minister and not subsequently withdrawn. The Tribunal was also required to consider the other subclauses of clause 186.223, which relate to the nominated position, the applicant's identification, the absence of adverse information, the continued availability of the position, and the timeframe for the visa application following nomination approval.

The Tribunal reasoned that the Department's initial refusal of the nomination was erroneous. It noted that on 17 August 2020, the Tribunal had previously set aside the Department's decision and substituted an approval of the nomination. Consequently, the Tribunal found that the nomination in respect of the applicant had indeed been approved, thereby satisfying 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.