Kaur (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 Employer Nomination Scheme visa under the Temporary Residence Transition stream. The applicant's nominating employer, Aussie Dera Ltd Atf Aussie Dera Unit Trust, had initially applied for approval of the position of Restaurant Manager in respect of the applicant. The Department refused to approve the nomination, leading the employer to seek review by the Tribunal. The Tribunal, constituted by Cathrine Burnett-Wake, was required to determine whether the nomination met the relevant criteria.

The primary legal issue before the Tribunal was whether the nomination for the Restaurant Manager position, in relation to the applicant, had been approved and met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations. This clause, as applicable, stipulated that the nomination must have been approved, not subsequently withdrawn, and that there must be no adverse information known to Immigration about the nominator or associated persons, or such information must be reasonable to disregard. Furthermore, the position must remain available to the applicant, and the visa application must have been made within six months of the nomination's approval.

The Tribunal found that the employer's nomination for the Restaurant Manager position in respect of the applicant had indeed been approved by the Tribunal on 17 April 2019, setting aside the Department's earlier refusal. As this approval meant the applicant met the requirements of clause 186.223(2), the Tribunal concluded that this specific criterion for the visa was satisfied. Consequently, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining criteria for the primary applicant, as well as the applications of the second and third named visa applicants who were applying as members of the primary applicant's family unit.