Dhaliwal (Migration)

This matter concerned an appeal by an employer, Samaira Pty Ltd Atf Thappar Family Trust, to the Administrative Appeals Tribunal regarding the refusal by the Department of Immigration to approve a nomination for a Subclass 186 (Employer Nomination Scheme) visa, Temporary Residence Transition stream, for a Cook position. The primary applicant was a holder of a Subclass 457 visa at the time of the nomination.

The Tribunal was required to determine whether the nomination for the Cook position met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994. Specifically, the Tribunal needed to consider if the nomination had been approved, had not been withdrawn, if there was no adverse information concerning the nominator or associated persons, if the position remained available to the applicant, and if the visa application was made within six months of the nomination's approval.

The Tribunal found that the Department's decision to refuse the nomination was incorrect. It reasoned that the employer had applied for approval of the nomination, and on review, the Tribunal had set aside the Department's refusal and substituted a decision to approve the nomination under subregulation 5.19(3). Consequently, the Tribunal concluded that the primary applicant met the requirements of clause 186.223(2).

The Tribunal remitted the visa applications for reconsideration by the Minister. This included a direction that the first named applicant met the criteria under clause 186.223(2), and that the remaining criteria for her application, as well as the application of the second named applicant as a member of her family unit, should be reconsidered in full.