KAUR (Migration)

The Administrative Appeals Tribunal considered a matter concerning an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) visa under the Temporary Residence Transition stream. The applicant sought review of a decision relating to the nomination for the position of Hairdresser. The Tribunal, presided over by Sean Baker, found that the matter should be remitted for reconsideration.

The central legal issue before the Tribunal was whether the nomination for the visa had been approved, a key criterion under clause 186.223 of the Migration Regulations. This clause requires, among other things, that the nominated position is the subject of an approved nomination that has not been withdrawn, that there is no adverse information concerning the nominator or associated persons, or that such information can be disregarded, and that the position remains available to the applicant.

The Tribunal reasoned that it had previously considered the sponsorship bar imposed on the nominator in a prior decision, where the period of the bar was varied and the adverse information was deemed reasonable to disregard due to durable changes in management practices and ownership. In the present case, the Tribunal found that the nominated position met the requirements of subregulation 5.19(3) and that the applicant was identified as a holder of a Subclass 457 visa in relation to that nomination. Crucially, referencing its prior decision on the approval of the nomination, the Tribunal concluded that the nomination had been approved and had not been subsequently withdrawn.

Based on these findings, the Tribunal determined that the applicant met criterion 186.223 of Schedule 2 to the Regulations. Consequently, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining criteria for the grant of the Subclass 186 visa.