Ghimire (Migration)

This matter concerned an appeal by a visa applicant against the refusal of an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Temporary Residence Transition stream. The core dispute revolved around whether the applicant met the criteria for the nominated position, particularly in light of a prior refusal of the nomination application and the existence of adverse information. The Administrative Appeals Tribunal (AAT) was tasked with determining if the nomination had been validly approved and if the applicant satisfied the relevant legislative requirements.

The Tribunal was required to consider whether the nominated position met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994. This involved assessing whether the position was the subject of an approved nomination, whether the applicant was identified in relation to that position, and crucially, whether there was any adverse information known to the Department concerning the nominator or associated persons, or if it was reasonable to disregard such information. The Tribunal also had to determine if the position remained available to the applicant and if the visa application was lodged within the prescribed timeframe after the nomination approval.

The Tribunal found that the position nominated was indeed the same as that which was the subject of the relevant nomination application and that the visa applicant had been identified in that application. Furthermore, the Tribunal relied on its previous decision to set aside the Department's refusal and substitute an approval for the position of Cook. This approval meant that the nominator was the employer, the nomination had been approved and not withdrawn, and importantly, the Tribunal was satisfied that it was reasonable to disregard any adverse information concerning the nominator. Consequently, the Tribunal concluded that the applicant met the criteria under clause 186.223.

Given these findings, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria. The Tribunal directed that the first applicant met the criteria specified in clause 186.223 of Schedule 2 to the Regulations.