Brar (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal by an applicant for a Subclass 186 (Employer Nomination Scheme) visa, specifically under the Temporary Residence Transition stream. The core dispute revolved around the approval of the nomination for the applicant's position as a Gardener (General). The Department had initially refused to approve the nomination, leading to the employer's application for review by the Tribunal.

The Tribunal was required to determine whether the nomination for the applicant's position met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations. This clause mandates that the nominated position must be the subject of an approved nomination application that identifies the visa applicant, and that the nomination must have been approved and not subsequently withdrawn. Further requirements include the absence of adverse information concerning the nominator or associated persons, the continued availability of the position, and that the visa application was made within six months of the nomination's approval.

The Tribunal reasoned that its previous decision on 5 September 2019, which set aside the Department's refusal and substituted a decision to approve the nomination under regulation 5.19(3), meant that the nomination criterion under clause 186.223(2) was satisfied. Having found that the first named applicant met this specific criterion, the Tribunal concluded that the appropriate course was to remit the visa application to the Minister for reconsideration of the remaining eligibility requirements.