Kaur (Migration)

This matter concerned applications for Employer Nomination (Permanent) (Class EN) visas, specifically the Subclass 186 Temporary Residence Transition stream. The primary dispute revolved around the approval of a nomination for the position of Café or Restaurant Manager, which had initially been refused but was subsequently approved by the Tribunal on review. The Tribunal, constituted by Member Phoebe Dunn, was required to determine whether the applicants met the relevant criteria for the visa.

The central legal issue was whether the primary applicant satisfied clause 186.223 of Schedule 2 to the Regulations, which pertains to the approval of a nomination for the position. This clause requires, among other things, that the nomination has been approved and not withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available, and that the visa application was made within six months of the nomination's approval. A further issue arose concerning the eligibility of the secondary applicants, who sought to be granted the visa as members of the primary applicant's family unit.

The Tribunal reasoned that the primary applicant met the requirements of clause 186.223(2) because the nomination had been approved by the Tribunal on review. However, the Tribunal found itself unable to make a direction that the secondary applicants met the criteria under clause 186.311, as the primary applicant did not hold a Subclass 186 visa at the time of the Tribunal's decision. Consequently, the Tribunal remitted the applications for reconsideration. The decision directed that the first named applicant met clause 186.223(2), and the cases of the second, third, and fourth named applicants were referred back to the Department for fresh consideration.