Jasvir Singh (Migration)

This matter concerned an appeal by Jasvir Singh (the applicant) against a decision of the Department of Home Affairs regarding his Subclass 186 (Employer Nomination Scheme) visa application under the Direct Entry stream. The core of the dispute revolved around the approval of the nomination for the position of Cook, which was a prerequisite for the visa. The Administrative Appeals Tribunal (the Tribunal) was tasked with reviewing the Department's refusal of the nomination.

The primary legal issue before the Tribunal was whether the nomination for the position of Cook, made by Delta Hospitality Group Pty Ltd, had been validly approved in accordance with clause 186.233 of the Migration Regulations 1994. This clause sets out several requirements for an approved nomination, including that the position must be nominated in an application seeking to meet specific regulatory provisions, that the nominator must be the prospective employer, that the nomination must have been approved and not withdrawn, and that there must be no adverse information known to Immigration about the nominator or associated persons, or such information must be reasonable to disregard. Additionally, the position must remain available to the applicant, and the visa application must be made within six months of the nomination's approval.

The Tribunal considered the applicant's evidence regarding his employment history and the nature of the nominating business, which was corroborated by the nominator's representative. It noted that the nomination was initially refused by the Department on 2 June 2017, but the Tribunal subsequently set aside that decision and substituted an approval of the nomination on 27 April 2020. The Tribunal found that as the nomination had been approved, the applicant met the requirements of clause 186.233(3). However, the Tribunal also noted an issue concerning the first named applicant not holding a Subclass 186 visa at the time of the Tribunal's decision, leading to a referral of the second named applicant's case to the Department for fresh consideration.

Ultimately, the Tribunal remitted the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration. The Tribunal directed that the first named applicant meets criterion cl.186.233(3) of Schedule 2 to the Regulations, relating to the approval of the nomination.