Dhakal (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal concerning a Subclass 186 Employer Nomination Scheme visa, specifically within the Temporary Residence Transition stream, for the position of Cook. The applicant sought review of a decision relating to their nomination.

The primary legal issue before the Tribunal was whether the applicant possessed an approved nomination for the position of Cook that had not ceased to be valid. This required the Tribunal to consider the requirements of Clause 186.223 of the Migration Regulations, which mandates that the nominated position must be the subject of an approved nomination that identifies the visa applicant, has not been withdrawn, and for which there is no adverse information known to the Department. Further, the position must remain available to the applicant, and the visa application must have been lodged within six months of the nomination's approval.

The Tribunal found that while the employer did not have an approved nomination at the time of the Department's initial decision, the employer subsequently lodged a review application. On 15 June 2021, the Tribunal set aside the Department's refusal and substituted a decision approving the nomination. Based on the evidence presented, including the employer's documentation, employment agreements, and the applicant's financial records, the Tribunal was satisfied that all criteria under Clause 186.223 had been met. The Tribunal concluded that the matter should be remitted for reconsideration.