KAUR (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa, Temporary Residence Transition stream, by a hairdresser. The applicant's employer, AGM1 Pty Ltd, had lodged a nomination application. The Administrative Appeals Tribunal (the Tribunal) was required to consider whether the applicant met the criteria for the visa, specifically in relation to the nominated position.

The primary legal issue before the Tribunal was whether the applicant had satisfied clause 186.223 of Schedule 2 to the Migration Regulations 1994, which pertains to the approval of a nomination for the Temporary Residence Transition stream. This clause requires, among other things, that the nomination has been approved and has not been withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons, that the position remains available, and that the visa application was made within six months of the nomination approval.

The Tribunal noted that the employer's nomination application had initially been refused by a delegate of the Minister on 3 October 2017, and the applicant had not responded to a request for comment. However, the Tribunal subsequently approved the related nomination lodged by AGM1 Pty Ltd on 5 May 2020. Based on this subsequent approval of the nomination, the Tribunal found that the applicant had met the requirements of clause 186.223(2).

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant had met the criteria under clause 186.223(2) of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the grant of the visa.