Kaur (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Temporary Residence Transition stream of the Subclass 186 (Employer Nomination Scheme) visa. The applicant sought review of a decision concerning the approval of a nominated position. The decision was made by Cathrine Burnett-Wake, a Member of the Tribunal.

The central legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223(2) of Schedule 2 to the Regulations, which mandates that the position to which the visa application relates must be the subject of an approved nomination. This clause requires, among other things, that the nomination has been approved and not subsequently withdrawn, and that certain conditions regarding adverse information and the availability of the position are met.

The Tribunal reasoned that the applicant's nominating employer had initially applied for approval of the nominated position, which was refused by the Department. However, upon review, the Tribunal had previously set aside the Department's refusal and substituted a decision to approve the nomination. As the relevant nomination had been approved, the Tribunal concluded that the applicant met the criterion in clause 186.223(2). Consequently, the Tribunal remitted the visa application for reconsideration by the Minister, directing that the applicant meets this specific criterion. The applications of the second and third named visa applicants, who were family members of the primary applicant, were also remitted for full reconsideration.