Garg (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, specifically the Temporary Residence Transition stream. The applicant's nominating employer, Arminder Hehar Pty Ltd, had initially applied for approval of a Hairdresser position in respect of the first named applicant. The Department refused to approve the nomination, leading the employer to seek review by the Tribunal. The Tribunal, constituted by Member Mary Sheargold, was tasked with determining whether the nomination was approved.

The central legal issue before the Tribunal was whether the nomination for the Hairdresser position met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations. This clause, as applicable, requires that the position be the subject of an approved nomination that identifies the visa applicant, has not been withdrawn, and is still available to the applicant, among other conditions. The Tribunal also considered whether there was any adverse information known to Immigration concerning the nominator or associated persons, or if such information could be disregarded.

The Tribunal reasoned that the employer's application for review of the Department's refusal to approve the nomination had been successful. On 18 December 2020, the Tribunal had set aside the Department's decision and substituted a decision to approve the nomination under subregulation 5.19(3). As the nomination had been approved, the Tribunal found that the first named applicant met the requirement of clause 186.223(2).

Consequently, the Tribunal remitted the visa applications for reconsideration by the Minister, with a direction that the first named applicant met the criteria under clause 186.223(2) of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the visa, including those pertaining to any secondary applicants.