Zaman (Migration)

This matter concerned an appeal by an applicant for a Subclass 186 (Employer Nomination Scheme) visa, Temporary Residence Transition stream, against the refusal of their employer's nomination. The applicant had been identified in the nomination as a relevant Subclass 457 visa holder. The Department had initially refused the employer nomination, but the applicant sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause mandates that for the Temporary Residence Transition stream, the nominated position must be the subject of an approved nomination, the applicant must be identified as the relevant visa holder, and the nomination must not have been withdrawn, among other conditions.

The Tribunal reasoned that it was able to decide the review in the applicant's favour based on the material before it, without needing to invite the applicant to a hearing, pursuant to s.360(2)(a) of the Migration Act 1958. It found that the employer nomination, made by Alfi Group Pty Ltd, had been refused by the Department but subsequently approved by the Tribunal on 15 August 2018. As the relevant nomination had been approved and the applicant identified within it, the Tribunal concluded that the applicant met the criterion in cl.186.223(2).

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant meets the criteria specified in cl.186.223 of Schedule 2 to the Regulations.