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 dispute arose after the Department refused to approve the nomination of a Metal Fabricator position for the applicant. The nominating employer subsequently applied to the Tribunal for a review of this decision.

The primary legal issue before the Tribunal was whether the nomination for the applicant's position met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause, as applicable, requires that the nominated position be the subject of an approved nomination in the Temporary Residence Transition stream, identifying the visa applicant, and that the nomination has been approved and not withdrawn. Further requirements include the absence of adverse information concerning the nominator or associated persons, the continued availability of the position, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that the nominating employer, G & M BROTHERS PTY LTD, had applied for approval of the Metal Fabricator position for the applicant, who was a Subclass 457 visa holder at the time. Crucially, on 13 December 2018, the Tribunal had set aside the Department's refusal and substituted a decision to approve the nomination under subregulation 5.19(3). Consequently, the Tribunal concluded that the applicant met the requirement of clause 186.223(2).

Given this finding, the Tribunal remitted the visa application for reconsideration by the Minister. This reconsideration is to address the remaining criteria for the primary applicant's visa. Furthermore, the applications of the second, third, and fourth named visa applicants, who are family members of the primary applicant, are also to be reconsidered in full, as their eligibility is contingent on the primary applicant meeting the visa requirements.