Zhao (Migration)

This matter concerned an application for Employer Nomination (Permanent) (Class EN) visas, specifically the Subclass 186 (Employer Nomination Scheme) visa under the temporary residence transition stream. The primary applicant's visa application had been refused on the basis that the related position nomination application was not approved. The nominator subsequently sought review of the refusal of the nomination application. The Tribunal was asked to determine whether the primary applicant met the criteria for the visa, and consequently, whether the secondary applicants, who were family members, met the criteria to be included in the application.

The central legal issue before the Tribunal was whether the primary applicant satisfied clause 186.223(2) of the Migration Regulations 1994, which requires that the nomination has been approved and has not been subsequently withdrawn. A further issue arose regarding the secondary applicants' eligibility, specifically whether they satisfied clause 186.311, which requires them to be members of the family unit of a primary applicant who holds a Subclass 186 visa granted on the basis of satisfying primary criteria and having made a combined application.

The Tribunal reasoned that the primary applicant's visa application was refused because the nomination application had been refused, meaning clause 186.223(2) was not met. However, on review, the Tribunal set aside the decision to refuse the nomination and substituted a decision approving it. Consequently, the Tribunal found that the primary applicant now met clause 186.223(2). As the primary applicant did not hold the Subclass 186 visa at the time of the Tribunal's decision, the Tribunal was unable to direct that the secondary applicants met clause 186.311. The Tribunal remitted the applications for reconsideration, directing that the primary applicant met clause 186.223(2), and referred the cases of the secondary applicants to the Department for fresh consideration.