Dhaliwal (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Temporary Residence Transition stream. The applicant, Mrs Dhaliwal, sought review of a decision by the Administrative Appeals Tribunal (AAT) concerning her visa application. The core dispute revolved around whether the nomination for the position of Pastrycook, made by Investor Focus Pty Ltd, met the requirements of the relevant regulations.

The Tribunal was required to determine whether the nomination had been approved and had not been subsequently withdrawn, whether there was any adverse information known to the Department regarding the nominator or associated persons, and crucially, whether the nominated position remained available to the applicant. The Tribunal also considered a non-disclosure certificate issued under s 375A of the Act, which advised that disclosure of certain information regarding a risk profile recorded on the Department's file would be contrary to the public interest.

The Tribunal reasoned that the s 375A certificate and the information it related to were not relevant to its review of the decision, as it did not bear on the processing of the visa application. Therefore, the Tribunal disregarded the certificate and determined that no weight should be given to the information. The Tribunal noted that the Department had initially refused to approve the nomination, but the AAT had subsequently set aside that decision and substituted a decision to approve the nomination. The Tribunal found that the applicant met the criteria under cl 186.223(2) of Schedule 2 to the Regulations, which pertains to the approval of the nomination.

However, as the applicant did not hold a Subclass 186 visa at the time of the Tribunal's decision, the Tribunal could not make a direction that other named applicants meet specific criteria. Consequently, the Tribunal remitted the applications for reconsideration by the Department, with a direction that the first named applicant, Mrs Dhaliwal, met the requirements of cl 186.223(2).