DEVI LAL (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa. The primary dispute before the Tribunal was whether the relevant nomination had been approved as required by clause 186.223 of the Migration Regulations 1994. The applicant sought to rely on a nomination made by Punjab Indian Sweets & Restaurant Pty Ltd, which had initially been refused by the Department.

The Tribunal was required to determine if the nomination met the criteria outlined in clause 186.223, specifically whether the nomination had been approved and not subsequently withdrawn, whether there was any adverse information concerning the nominator or associated persons, if the nominated position remained available to the applicant, and if the visa application was lodged within six months of the nomination's approval. The Tribunal also had to consider the implications of its findings on the visa applications of two named applicants.

The Tribunal reasoned that the initial refusal of the nomination by the Department had been set aside by a previous Tribunal decision, which substituted a decision approving the nomination. Consequently, the Tribunal found that the first named applicant met the requirements of clause 186.223(2). Given this finding, the Tribunal determined that the appropriate course was to remit the visa applications for reconsideration by the Minister, directing that the remaining criteria for the first named applicant be assessed and that the application of the second named applicant be reconsidered in full.