Kanojiya (Migration)

The Administrative Appeals Tribunal considered the case of Kanojiya, an applicant for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) visa under the Temporary Residence Transition stream. The dispute centred on whether the applicant's nominated position as a hairdresser was the subject of an approved nomination, particularly in light of adverse information received by the Department of Immigration.

The primary legal issue before the Tribunal was to determine if the requirements of clause 186.223 of the Migration Regulations 1994 had been met, specifically concerning the approval of the nomination and the absence of adverse information, or if such adverse information could be disregarded. The Tribunal also had to consider the validity of a certificate issued under section 376 of the Migration Act 1958, which contained allegations that the nominated position was not genuine and that the applicant may have engaged in payment for visa arrangements.

The Tribunal reasoned that while the applicant provided extensive evidence supporting her employment and role, the Department had received anonymous allegations suggesting the position was not genuine and that the applicant was not qualified or working as a hairdresser, but rather managing apartments. The Tribunal provided the applicant with the gist of this information under section 359AA of the Act and invited her to respond. However, the Tribunal found it could not definitively conclude on the validity of the nomination or the adverse information without further substantiation. Consequently, the Tribunal remitted the applications for reconsideration, directing that the first named applicant met criterion 186.223(2) of Schedule 2 to the Regulations. The Tribunal also referred the secondary applicants' cases to the Department for fresh consideration.