Brar (Migration)

The Administrative Appeals Tribunal considered an application for review concerning a Subclass 186 Employer Nomination Scheme visa. The applicant, a holder of a Subclass 457 visa, had their nominating employer's application for approval of a nominated position initially refused by the Department. The employer sought review of this refusal.

The primary legal issue before the Tribunal was whether the nomination for the applicant's position as a Cook met the requirements of clause 186.223(2) of the Migration Regulations 1994. This clause specifies conditions for applicants in the Temporary Residence Transition stream, including that the nominated position must be the subject of an approved nomination, the applicant must have been identified as the relevant visa holder, and the nomination must not have been withdrawn, among other criteria.

The Tribunal reasoned that on 20 June 2018, it had previously set aside the Department's refusal and substituted a decision to approve the nomination under regulation 5.19(3). As this approval had been made and the applicant was identified in that nomination, the Tribunal concluded that clause 186.223(2) was satisfied. Consequently, the Tribunal remitted the visa application for reconsideration by the Minister, directing that the applicant meets the criteria under clause 186.223(2). The applications of the second and third named visa applicants, who were family members of the primary applicant, were also remitted for full reconsideration.