Kaur (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream, for a Café or Restaurant Manager. The applicant’s nominating employer, Rajkrystle Pty Ltd, had initially applied for approval of the nomination, which was refused by the Department. The employer then applied to the Tribunal for a review of this decision. The Tribunal, constituted by Member Mary Sheargold, was required to determine whether the nomination for the applicant's position had been approved.

The central legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223(2) of Schedule 2 to the Migration Regulations 1994, which stipulates that the Minister must have approved the nomination. This clause, as applicable, required that the nomination be approved, not subsequently withdrawn, that there be no adverse information known to Immigration about the nominator or associated persons (or that such information could be disregarded), that the position remained available to the applicant, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that on 14 January 2021, it had set aside the Department's decision to refuse the nomination and substituted a decision to approve the nomination under regulation 5.19(3). Consequently, the Tribunal concluded that the nomination had been approved and that the applicant therefore met the requirements of clause 186.223(2).

Given these findings, the Tribunal remitted the visa applications for reconsideration by the Minister, with a direction that the first applicant met the criteria under clause 186.223(2). The Minister was to consider the remaining criteria for the visa, including those pertaining to secondary applicants.