Kaur (Migration)

This matter concerned an appeal by Ms Kaur, the first applicant, and her family members, the second and third applicants, against a decision relating to an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream. The dispute centred on whether the nominating employer, Persaud’s Enterprises, had met the requirements for the nomination of Ms Kaur to the position of Painting Trades Worker. The case was heard by the Tribunal.

The Tribunal was required to determine whether the requirements of clause 186.223 of the Migration Regulations 1994 had been met. Specifically, this involved assessing whether the nominated position was approved and not withdrawn, whether there was any adverse information concerning the nominator or associated persons, whether the position remained available to the applicant, and whether the visa application was lodged within six months of the nomination approval.

The Tribunal reasoned that the employer’s nomination application, initially refused by the Department of Home Affairs, had subsequently been approved by the Tribunal on review on 26 March 2020. The Tribunal found that all subclauses of clause 186.223 were satisfied: the nomination was approved and not withdrawn, no adverse information was known to Immigration, the position remained available, and the visa application was made within the prescribed six-month period.

Consequently, the Tribunal remitted the visa application for reconsideration by the Minister, with a direction that the first applicant, Ms Kaur, met the requirements of clause 186.223. The applications of the second and third applicants, who applied as family members, were to be determined by reference to the outcome of Ms Kaur’s application upon remittal.