Kaur (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 Temporary Residence Transition stream, for a position as a Cook. The applicant sought review of a decision by the Department of Home Affairs concerning the approval of the nomination for this position. The case was heard by Terrence Baxter of the Tribunal.

The primary legal issue before the Tribunal was whether the nomination for the applicant's position as a Cook had been approved, as required by clause 186.223 of Schedule 2 to the relevant regulations. This clause outlines several conditions for an approved nomination, including that the nomination must have been approved, not withdrawn, that there is no adverse information about the nominator or associated persons, that the position remains available to the applicant, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that the nomination application was initially refused by the Department but was subsequently reviewed by the Tribunal. On 14 August 2023, the Tribunal set aside the Department's refusal and substituted a decision approving the nomination. Consequently, the Tribunal concluded that clause 186.223(2) of Schedule 2 to the Regulations was met.

Given this finding, the Tribunal determined that the appropriate course of action was to remit the visa application to the Minister for reconsideration of the remaining criteria for the Subclass 186 visa. The Tribunal directed that the applicant be considered to meet criterion 186.223(2).