KAUR (Migration)

This matter concerned an application for an Employer Nomination (Permanent) visa, Subclass 186 (Employer Nomination Scheme), brought before the Tribunal by the applicant, Ms Kaur, and her family members. The central dispute revolved around whether the nomination for Ms Kaur's position as a Cook had been validly approved, a prerequisite for her visa application under clause 186.223 of the Regulations.

The Tribunal was required to determine if the nomination for Ms Kaur's position met the requirements of clause 186.223(2) of Schedule 2 to the Regulations. This clause specifies that for applicants in the Temporary Residence Transition stream, the nominated position must have been the subject of an application for approval under regulation 5.19(3), the applicant must have been identified as the relevant Subclass 457 visa holder, the nomination must have been approved and not withdrawn, there must be no adverse information known to the Department, the position must remain available, and the visa application must have been made within six months of the nomination's approval.

The Tribunal reasoned that the employer, Graceland Manor Pty Ltd, had applied for approval of the Cook position for Ms Kaur. Although the Department initially refused this nomination, the Tribunal had previously set aside that decision on 22 June 2018 and substituted a decision to approve the nomination under regulation 5.19(3). As the relevant nomination had been approved and Ms Kaur was a 457 visa holder at the time, the Tribunal concluded that clause 186.223(2) was satisfied.

Consequently, the Tribunal remitted the visa application for reconsideration by the Minister. This reconsideration was to include the remaining criteria for Ms Kaur's application and, as a consequence of her meeting the primary criteria, the applications of the second and third named visa applicants, who were family members, were also to be reconsidered in full.