Khan (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa, Temporary Residence Transition stream, for Mr Khan, nominated by Zahid Ali T/A Zahid Restaurant for the position of Cafe or Restaurant Manager. The dispute arose from a confidential anonymous tip-off received by the Department, which alleged that Mr Khan had not worked in the restaurant. The Tribunal was required to determine whether there was an approved nomination in respect of Mr Khan.

The Tribunal considered the effect of a section 376 certificate issued by the Department, which prevented disclosure of certain information on public interest grounds. The certificate related to an anonymous tip-off that incorrectly identified Mr Khan as female and stated she had not worked in the restaurant. The Tribunal also heard independent evidence from Mr Ali and Mr Khan regarding Mr Khan's duties, the restaurant's operations, and staffing. Mr Khan provided supporting financial documentation.

The Tribunal found the anonymous tip-off to be demonstrably false due to its incorrect identification of Mr Khan's gender. Given this falsehood and the credible independent evidence presented, the Tribunal disregarded the information contained within the section 376 certificate. The Tribunal noted that it had approved the nomination application on 14 January 2019, thereby satisfying clause 186.223(2) of the Regulations. Consequently, the Tribunal remitted the applications for reconsideration, directing that Mr Khan met the criteria under clause 186.223(2). The application of Mr Khan's wife, Robina Akhtar, as a member of his family unit, would be determined by reference to the outcome of Mr Khan's application.