Aulakh (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), direct entry stream. The primary applicant, Mrs Gurpreet Kaur Aulakh, sought the visa, with Mr Arashdeep Singh Brar applying as a member of her family unit. The core of the dispute revolved around the approval of the nomination for the position of Retail Manager by NightOwl Trinity Beach Pty Ltd, which had initially been refused by the Department of Immigration and Border Protection. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the requirements of clause 187.233(3) of Schedule 2 to the Migration Regulations 1994.

The Tribunal was tasked with assessing whether the nominated position met the criteria outlined in clause 187.233, which included requirements that the position be located in regional Australia, be the subject of an approved nomination, and that the nominating employer be the prospective employer. Further, for nominations made on or after 1 July 2017, the nomination must identify the applicant, the nomination must have been approved and not withdrawn, there must be no adverse information known to Immigration about the nominator or associated persons (or such information must be reasonable to disregard), the position must remain available, and the visa application must have been made within six months of the nomination's approval. The Tribunal also needed to consider the application of Mr Arashdeep Singh Brar, which was contingent on the outcome of Mrs Aulakh's application.

The Tribunal found that the nominating employer, NightOwl Trinity Beach Pty Ltd, had applied for approval of a nomination for the Retail Manager position. Although this nomination was initially refused by the Department, the Tribunal, on review, set aside that decision and substituted a new decision to approve the nomination under regulation 5.19. Consequently, the Tribunal concluded that Mrs Aulakh satisfied clause 187.233(3) of Schedule 2 to the Regulations. Given this finding, the Tribunal determined that the appropriate course was to remit the visa application to the Minister for reconsideration of the remaining criteria for the visa.