Bhogal (Migration)

The Administrative Appeals Tribunal (AAT) considered an appeal by Mr. Bhogal concerning a refusal to grant him an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the temporary residence transition stream. The core of the dispute revolved around the approval of the nominated position and whether the applicant met the relevant visa criteria.

The primary legal issue before the Tribunal was to determine if the visa applicants satisfied the criteria for the grant of Subclass 186 visas, specifically focusing on clause 186.223 of Schedule 2 to the Regulations. This clause outlines requirements for the nominated position, including its approval, non-withdrawal, availability to the applicant, and the timing of the visa application relative to the nomination approval. The Tribunal also had to consider whether any adverse information was known to the Department regarding the nominator or associated persons.

The Tribunal found that the nominated position, that of a Cook (ANZSCO 351411) by Shine Excellence Pty Ltd, met the requirements of clause 186.223(1). It was satisfied that the nomination had been approved on 4 June 2020, had not been withdrawn, and the position remained available to the applicant, thus satisfying clauses 186.223(3) and (4). Furthermore, the visa application made on 29 June 2017 was within the six-month timeframe after the nomination approval, fulfilling clause 186.223(5). The Tribunal also noted that the nomination refusal decision had been set aside and a decision approving the nomination substituted in a related AAT case.

Consequently, the Tribunal remitted the application for the Subclass 186 visas to the Minister for reconsideration of the remaining criteria. This reconsideration was to include all applicants, specifically the second applicant who was claimed to be a member of the same family unit as the primary applicant. The Tribunal directed that the first applicant met criterion 186.223.