Chauhan (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa, specifically the Temporary Residence Transition stream, for a position as a Cook. The applicant's sponsor had lodged a nomination which was initially refused by a delegate of the Minister. The applicant did not respond to the refusal, and the visa was subsequently refused on the grounds that the nomination had not been approved. The nominator then applied for a review of the nomination refusal. The Administrative Appeals Tribunal, differently constituted, considered the review.

The primary legal issue before the Tribunal was whether the applicant had been the subject of an approved nomination as required by clause 186.223(2) of Schedule 2 to the Migration Regulations. This clause mandates that the Minister must have approved the nomination for the position to which the visa application relates. The Tribunal was required to determine if this criterion had been met, given the history of the nomination's refusal and subsequent review.

The Tribunal reasoned that while the initial nomination was refused, a subsequent review by the Tribunal on 8 April 2021 resulted in the decision to refuse the nomination being set aside and a decision approving the nomination being substituted. Consequently, the Tribunal was satisfied that the applicant was now subject to an approved nomination, thereby meeting the requirements of clause 186.223(2). Given this finding, the Tribunal determined that the appropriate course of action was to remit the visa applications to the Minister for reconsideration of the remaining visa criteria.