kaur (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa, Temporary Residence Transition stream, for a Cook. The applicant's nominating employer, MM & KM Pty Ltd, had initially had its nomination for the position refused by the Department. The Administrative Appeals Tribunal (the Tribunal) was required to review this decision.

The primary legal issue before the Tribunal was whether the relevant nomination for the position of Cook had been approved, as required by clause 186.223 of the Migration Regulations 1994. This clause necessitates that the nominated position be the subject of an approved nomination application in the Temporary Residence Transition stream, that the visa applicant be identified in that nomination, and that the nomination has not been withdrawn. Further requirements include the absence of adverse information concerning the nominator or associated persons, the continued availability of the position, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that the position was the same as that in the nomination and visa application, and that the applicant had been identified as a Subclass 457 visa holder in the nomination. Crucially, the Tribunal noted that it had previously set aside the Department's refusal and substituted a decision to approve the nomination under r.5.19(3) on 8 January 2021. Based on the evidence, the Tribunal was satisfied that the nomination had been approved, not withdrawn, there was no adverse information, the position remained available, and the visa application was made within the prescribed timeframe.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, directing that the applicant met the criteria under clause 186.223 of Schedule 2 to the Regulations.