Kawasaki (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 (Employer Nomination Scheme) Temporary Residence Transition stream, for a position as a Cook. The applicant, Mr. Kawasaki, had his visa application refused after his employer's nomination was initially refused by the Department of Immigration. The employer, Kojiaoki Holdings Pty Ltd, sought review of the nomination refusal. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the nomination for the position of Cook met all the stipulated criteria under clause 186.223. This clause requires, among other things, that the nominated position is the subject of an approved nomination that has not been withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available to the applicant, and that the visa application was made within six months of the nomination's approval. The Tribunal also had to consider the effect of its previous decision to set aside the Department's refusal and substitute an approval for the nomination.

The Tribunal reasoned that following its prior decision to approve Kojiaoki Holdings Pty Ltd's nomination for the Cook position, and having regard to the evidence presented, all the requirements of clause 186.223 were satisfied. Specifically, the Tribunal was satisfied that the nominator was the employer, the nomination had been approved and not withdrawn, there was no adverse information known to Immigration, the position was still available, and the visa application was made within the prescribed six-month period after the nomination approval. Consequently, the Tribunal found that the applicant met this specific criterion for the visa.

The Tribunal remitted the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration by the Minister, with the direction that the applicant meets the criteria set out in clause 186.223 of Schedule 2 to the Regulations. This meant that the Minister was to proceed to consider the remaining criteria for the grant of the Subclass 186 visa.