Dilsher Singh (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) visa under the Temporary Residence Transition stream. The applicant, Dilsher Singh, was nominated for a position as a Motor Mechanic. The dispute arose from the refusal of the employer's nomination application by the Department of Home Affairs, which was subsequently reviewed by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the nomination for the applicant's position as a Motor Mechanic met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations. This clause, in essence, requires that the position be the subject of an approved nomination application that identifies the visa applicant and that the Minister has approved the nomination. The Tribunal also considered the implications of this determination for other family unit applicants.

The Tribunal reasoned that the Department's initial refusal to approve the nomination was flawed. It noted that the employer had lodged a nomination application on 18 March 2016, which was refused on 25 July 2017. However, on 6 November 2020, the Tribunal set aside this refusal and substituted a decision to approve the nomination. Consequently, the Tribunal found that clause 186.223(2) was now satisfied in relation to the applicant.

Given that the nomination criteria had been met, the Tribunal determined that the appropriate course was to remit the visa application to the Minister for reconsideration of the remaining visa criteria. The Tribunal directed that the first-named applicant, Dilsher Singh, met the criteria under clause 186.223(2). The applications of other family members would be determined by reference to the outcome of the applicant's remitted application.