Amanpreet Kaur (Migration)

This matter concerned an appeal by Amanpreet Kaur against a decision of the Department of Home Affairs regarding her application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the temporary residence transition stream of the Subclass 186 (Employer Nomination Scheme) visa. The dispute centred on the refusal of the associated nomination application, which had subsequently been set aside on review by the Tribunal. The second and third named applicants, who applied as members of Ms. Kaur's family unit, had their applications linked to the outcome of Ms. Kaur's visa application.

The primary legal issue before the Tribunal was whether the applicant, Ms. Kaur, met criterion 186.223 of Schedule 2 to the Migration Regulations 1994. This criterion requires, among other things, that the nominated position is approved, has not been withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons, that the position remains available to the applicant, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that the applicant met criterion 186.223. It noted that the nomination application for the position of Cook was made by the applicant's employer, C J Fulham & A M McHarry & L J McHarry and P Vondra (trading as the Rococo Group), on 14 February 2017. Although this nomination was initially refused, the Tribunal had previously set aside that refusal and substituted a decision to approve the nomination on 29 July 2020. The Tribunal was satisfied, based on departmental records, that the nomination was approved and not withdrawn, no adverse information was known, the position remained available, and the visa application was made within the prescribed timeframe after the nomination approval.

Consequently, the Tribunal remitted the visa application for reconsideration by the Minister, with a direction that Ms. Kaur meets criterion 186.223. The applications of the second and third named applicants, as family unit members, were also to be determined by reference to the outcome of Ms. Kaur's application upon remittal.