Kaur (Migration)

This matter concerned an appeal by the applicant, Ms Kaur, against the refusal of her Subclass 186 Employer Nomination Scheme visa application. The appeal also involved the applications of her family members, who applied as members of her family unit. The primary issue before the Tribunal was whether Ms Kaur met the criteria set out in clause 186.223 of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to determine if the nominated position for which Ms Kaur applied was the subject of an approved nomination that identified her as the visa applicant, and if all subsequent requirements of clause 186.223 were satisfied. These requirements included that the nomination had been approved and not withdrawn, that there was no adverse information known to Immigration concerning the nominator or associated persons, that the position remained available to the applicant, and that the visa application was lodged within six months of the nomination's approval.

The Tribunal found that the nomination application made by Exotic Pizza Pty Ltd for the position of Cook had been approved on review by the Tribunal on 20 May 2022, after an initial refusal by the Department. The Tribunal was satisfied that the visa application related to this nominated position and that Ms Kaur was identified as the holder of a Subclass 457 visa in relation to it. Furthermore, the Tribunal was satisfied that the nomination had not been withdrawn, the position remained available, and the visa application was made within the prescribed timeframe. Crucially, the Tribunal found no adverse information known to Immigration regarding the nominator or associated persons. Consequently, the Tribunal concluded that clause 186.223 was met for Ms Kaur.

The Tribunal remitted the applications for reconsideration by the Department, with the direction that Ms Kaur met the criteria for a Subclass 186 visa. The applications of the second, third, and fourth named applicants, who applied as members of Ms Kaur's family unit, were also remitted for reconsideration in accordance with this direction.