Kaur (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), specifically under the temporary residence transition stream. The primary dispute revolved around the approval of the nominated position for the first applicant. The decision was made by Member Mary Sheargold of the Tribunal.

The legal issue before the Tribunal was whether the nominated position met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations. This clause mandates that the position must be the subject of an approved nomination that identifies the visa applicant, has not been withdrawn, and for which there is no adverse information known to Immigration, or such information can be disregarded. Furthermore, 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 reasoned that the employer, Genmehar Pty Ltd, had applied for approval of the Hairdresser position for the first applicant. Although the Department initially refused this nomination, the Tribunal had previously set aside that decision and substituted an approval under subregulation 5.19(3) on 11 February 2021. Consequently, the Tribunal found that the first applicant met the criterion under cl.186.223(2) as the relevant nomination had been approved.

Given that the primary applicant met this specific criterion, the Tribunal determined that the appropriate course of action was to remit the visa applications for reconsideration by the Minister. This reconsideration was to include the assessment of the remaining criteria for the visa, particularly in relation to the secondary applicants.