Kaur (Migration)

The Administrative Appeals Tribunal considered a matter involving an applicant seeking an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 Temporary Residence Transition stream. The dispute arose because the Department of Home Affairs had refused to approve the employer's nomination, which was a prerequisite for the applicant's visa application. The nominator subsequently sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the nomination relating to the applicant had been approved, as required by clause 186.223 of Schedule 2 to the Migration Regulations. This clause mandates that the nomination must have been approved by the Minister and not subsequently withdrawn, among other conditions. The applicant's visa application was based on a nomination made by Lovely Indian Sweets Pty Ltd, identifying the applicant as a Subclass 457 visa holder.

The Tribunal reasoned that on 28 February 2019, it had set aside the Department's refusal decision and substituted an approval of the nomination. Consequently, the Tribunal found that the applicant met the requirement of clause 186.223(2) because the relevant nomination had been approved. Given this finding, the Tribunal determined that the appropriate course of action was to remit the application to the Minister for reconsideration of the remaining criteria for the grant of the visa.