Yang (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's employer, Australian Ideal College Pty Ltd, had its nomination application initially refused by the Department on 25 July 2017. However, on review by the Tribunal on 15 April 2019, the nomination was approved. The dispute before the Tribunal was whether the position to which the visa application related was the subject of an approved nomination.

The primary legal issue before the Tribunal was to determine whether the requirements of clause 186.223 of the Migration Regulations were met. This clause mandates that the nominated position must be the subject of an approved nomination application that identifies the visa applicant, and that the nomination must have been approved and not subsequently withdrawn. Further requirements include the absence of adverse information concerning the nominator or associated persons, the continued availability of the position to the applicant, and that the visa application was made within six months of the nomination's approval.

The Tribunal reasoned that because the nomination had been approved by the Tribunal on review, and all other conditions stipulated in clause 186.223 were satisfied, the applicant met this specific criterion for the visa. The Tribunal found that the position was the subject of an approved nomination, and therefore, the requirements of clause 186.223 were satisfied.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining criteria. The Tribunal directed that the applicant be considered to have met the criteria under clause 186.223 of Schedule 2 to the Migration Regulations.