Brar (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 (Employer Nomination Scheme) temporary residence transition stream. The primary dispute revolved around the refusal of a related position nomination by the Department, which had been subsequently set aside and approved by the Administrative Appeals Tribunal. The applicants sought review of the Tribunal's decision.

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 This clause, as applicable, required that the nominated position be approved, not subsequently withdrawn, and that there be no adverse information known to Immigration about the nominator or associated persons, or that such information could be disregarded.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

The Tribunal reasoned that the Department's initial refusal of the nomination was flawed. It noted that the employer had applied to have the position of cook approved with the first applicant as the nominee on 14 April 2017. This nomination was refused on 20 March 2018, but the employer sought review, and on 2 June 2020, the Tribunal set aside the refusal and substituted a decision to approve the nomination. Consequently, the Tribunal found that clause 186.223(2) was satisfied.

Given that the nomination was approved, the Tribunal determined that the appropriate course was to remit the visa application to the Minister for reconsideration of the remaining criteria. The applications of the second named applicants, who applied as members of the family unit of the primary applicant, were to be determined based on the outcome of the primary applicant's reconsidered application.