Brar (Migration)

This matter concerned an appeal by KDM Group of Companies Pty Ltd, the nominating employer, against a decision of the Department of Immigration to refuse to approve a nomination for a Subclass 186 (Employer Nomination Scheme) visa, Temporary Residence Transition stream. The case was heard by Member Mary Sheargold of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the nomination for the position of Café or Restaurant Manager, made in relation to the first named visa applicant, met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause outlines several criteria, including that the nomination must have been approved, not subsequently withdrawn, that there must be no adverse information known to Immigration about the nominator or associated persons (or such information must be disregarded), that the position must still be available to the applicant, and that the visa application must have been made within six months of the nomination's approval.

The Tribunal found that the employer had applied for approval of the nomination, and on review, the Tribunal had previously set aside the Department's refusal and substituted a decision to approve the nomination under subregulation 5.19(3). As the nomination had been approved, the Tribunal concluded that the first named applicant met the requirement of clause 186.223(2). Consequently, the Tribunal remitted the visa applications for reconsideration by the Minister, directing that the first named applicant had met the criteria under clause 186.223(2).