Kaur (Migration)

The Administrative Appeals Tribunal considered the applications of the first, second, and third named applicants for Employer Nomination (Permanent) (Class EN) visas, specifically the Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream. The primary dispute concerned whether the first named applicant met the requirements of clause 186.223, which pertains to the nomination of a position.

The Tribunal was required to determine if the nominated position for a Hairdresser by Rosa’s Hair and Beauty Salon was approved, had not been withdrawn, and if there was no adverse information known to Immigration about the nominator or associated persons, or if such information could be disregarded. Additionally, the Tribunal had to ascertain if the position remained available to the applicant and if the visa application was lodged within six months of the nomination's approval. The Tribunal also needed to consider the applications of the second and third named applicants as members of the family unit of the primary applicant.

The Tribunal reasoned that on 15 February 2021, it had set aside the Department's refusal of the nomination and substituted a decision approving it. The Tribunal was satisfied that all the conditions stipulated in clause 186.223 were met, including the approval and non-withdrawal of the nomination, the absence of adverse information, the continued availability of the position, and the timely lodgement of the visa application. Consequently, the Tribunal found that the first named applicant satisfied the primary criteria for the Subclass 186 visa.

The Tribunal remitted the visa applications for reconsideration by the Minister, directing that the first named applicant meets the criteria under cl.186.223. The Tribunal also directed that the applications of the second and third named applicants be reconsidered as members of the family unit of a person who has satisfied the primary criteria for the visa.