Zhao (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Employer Nomination Scheme, Temporary Residence Transition stream. The applicant sought review of a decision concerning the approval of their associated nomination. The Tribunal, constituted by R. Skaros, was required to determine whether the relevant nomination had been approved, as this was a prerequisite for the visa application.

The central legal issue before the Tribunal was the interpretation and application of clause 186.223 of Schedule 2 to the Migration Regulations. This clause stipulates that for a Subclass 186 visa under the Temporary Residence Transition stream, the position must be the subject of an approved nomination that identifies the visa applicant. Crucially, the nomination must have been approved by the Minister.

The Tribunal found that the nomination made by Australia Asia International Pty Ltd, in which the applicant was identified as a Subclass 457 visa holder, had initially been refused by the Department. However, subsequent to this refusal, the nominator applied to the Tribunal for review. On 6 June 2019, the Tribunal set aside the Department's decision and substituted an order approving the nomination. Consequently, the Tribunal concluded that the applicant now met the requirement of clause 186.223(2) as the relevant nomination had been approved.

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. The Tribunal directed that the applicant met criterion cl.186.223(2) of Schedule 2 to the Regulations.