Zhong (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Temporary Residence Transition stream. The applicant sought review of a decision by the Department of Home Affairs. The Tribunal, presided over by Jade Murphy, was tasked with determining whether the nominated position remained available to the applicant and if the nomination itself was approved.

The central legal issue before the Tribunal was whether the applicant met criterion 186.223 of Schedule 2 to the Regulations, which requires the nominated position to be the subject of an approved nomination. This criterion, as applicable, necessitates that the nomination has been approved and not subsequently withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons (or such information can be disregarded), and crucially, that the position is still available to the applicant. The visa application must also have been made within six months of the nomination's approval.

The Tribunal reasoned that while the initial nomination lodged by Scotia Australia Pty Ltd was refused by the Department on 28 August 2019, the applicant subsequently applied for a review of this decision. On 9 June 2023, the Tribunal set aside the Department's refusal and substituted a decision approving the nomination. Consequently, the Tribunal found that the nomination was now approved and had not been withdrawn, and that the position was still available to the applicant, thereby satisfying criterion 186.223. The Tribunal therefore remitted the visa application to the Minister for reconsideration of the remaining visa criteria.