Jasbir Kaur (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa, specifically under the temporary residence transition stream. The applicant, Jasbir Kaur, was the subject of an approved position nomination by her employer, Spice of India (Aust) Pty Ltd. The dispute arose because the Department initially refused to approve the nomination, a decision that was subsequently set aside on review by the Tribunal. The Tribunal, presided over by Member Nicola Findson, was required to determine whether the applicant met the criteria for the visa, particularly clause 186.223 of Schedule 2 to the Regulations.

The primary legal issue before the Tribunal was to assess whether the nominated position met the requirements of clause 186.223. This clause mandates that the position must be nominated in an application seeking approval under subregulation 5.19(3), identify the visa applicant as a Subclass 457 visa holder, and be the subject of a declaration made in the visa application. Furthermore, the clause requires that the nomination has been approved and not withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons, or that any such information is reasonable to disregard. It also stipulates that the position must remain available to the applicant and that the visa application must be lodged within six months of the nomination's approval.

The Tribunal found that the applicant met the requirements of clause 186.223. It accepted that the nominated position of Retail Buyer was correctly identified and that the applicant was indeed a Subclass 457 visa holder in relation to that nomination. Crucially, the Tribunal noted that a previous decision had already set aside the Department's refusal and substituted an approval for the nomination. Based on the evidence before it, the Tribunal was satisfied that the nomination had been approved, not withdrawn, the position remained available, the visa application was lodged within the prescribed timeframe, and there was no adverse information concerning the nominator or associated persons.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration. The direction was that the applicant, Jasbir Kaur, had met the criteria under clause 186.223 of Schedule 2 to the Regulations, allowing for the assessment of the remaining criteria for the Subclass 186 visa.