BRAR (Migration)

The Administrative Appeals Tribunal considered a review application concerning an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), specifically the Temporary Residence Transition stream. The applicant and the nominator, Kashmir Transport Pty Ltd, sought review of the initial refusal of the visa application. The Tribunal was tasked with determining whether the nominated position of Customer Service Manager met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994.

The central legal issue before the Tribunal was whether the nominated position satisfied all the criteria outlined in clause 186.223. This included whether the nomination had been approved and not withdrawn, whether there was any adverse information known to Immigration about the nominator or associated persons, or if such information could reasonably be disregarded, and whether the position remained available to the applicant. Crucially, the Tribunal also had to consider whether the visa application was made within six months of the nomination's approval.

The Tribunal found that the applicant had provided details of a relevant nomination that matched the Transaction Reference Number and identified the applicant as a Subclass 457 visa holder, satisfying clause 186.223(1). The nomination had been approved by the Tribunal on 27 March 2020 and had not been withdrawn. The applicant was employed in the nominated position, and it was still available. The Tribunal determined that the visa application was made prior to the nomination's approval, thus satisfying the requirement that it was not made more than six months after approval. Regarding adverse information, the Tribunal noted the nominator's previous sanction and bar as an approved sponsor but concluded, for reasons previously articulated in another matter, that it was reasonable to disregard this information for the purposes of clause 186.223(3A).

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant met the criteria under clause 186.223. The Minister was to consider the remaining criteria for the grant of the visa.