Bansal (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) under the Temporary Residence Transition stream. The applicant's nominating employer, Sinpak Pty Ltd, had applied for approval of a Café or Restaurant Manager position. The Administrative Appeals Tribunal (AAT), constituted by Member Mary Sheargold, was reviewing the Department's refusal to approve the nomination.

The primary legal issue before the Tribunal was whether the nomination for the applicant's position met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause, as applicable, stipulated that the nomination must have been approved, not subsequently withdrawn, and that there must be no adverse information known to Immigration about the nominator or associated persons, or it must be reasonable to disregard such information. Furthermore, the position must remain available to the applicant, and the visa application must have been made within six months of the nomination's approval.

The Tribunal found that the nomination had indeed been approved by the Department on review, specifically on 13 May 2021, when the Tribunal set aside the initial refusal and substituted a decision to approve the nomination. As this criterion was met, the Tribunal concluded that the first named applicant satisfied clause 186.223(2) of the Regulations. Consequently, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining criteria, including those pertaining to any secondary applicants.