Yin (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa, specifically under the Temporary Residence Transition stream. The applicant sought review of a decision concerning their employer's nomination. The Tribunal, constituted by Phoebe Dunn, was required to determine whether the applicant met the criteria for the visa, particularly in relation to an approved nomination.

The primary legal issue before the Tribunal was whether the employer's nomination for the applicant's position as a Cook (ANZSCO 351411) had been approved, as required by clause 186.223 of the Migration Regulations 1994. This clause mandates that the nomination must be approved, not subsequently withdrawn, and that certain conditions regarding adverse information, position availability, and application timing must be met. The Tribunal also considered whether the secondary applicants, family members of the primary applicant, met the criteria for inclusion in the visa application.

The Tribunal found that the employer's nomination, initially refused by the delegate, had been set aside and approved by the Tribunal on 14 November 2019. Consequently, the Tribunal concluded that the first named applicant met the requirements of clause 186.223(2). However, the Tribunal was unable to make a direction that the second and third named applicants met the family unit criteria, as the primary applicant did not hold a Subclass 186 visa at the time of the Tribunal's decision.

Accordingly, the Tribunal remitted the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration. The remittal included a direction that the first named applicant satisfies clause 186.223(2) of Schedule 2 to the Regulations. The cases of the second and third named applicants were referred back to the Department for fresh consideration.