KULWINDER SINGH (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 cook. The applicant, Kulwinder Singh, sought review of a decision by the Administrative Appeals Tribunal. The core dispute revolved around whether the position to which the visa application related was the subject of an approved nomination.

The Tribunal was required to determine if the applicant met criterion 186.223 of Schedule 2 to the Migration Regulations 1994. This criterion necessitates that the nominated position has been approved, has not been withdrawn, and that there is no adverse information known to the Department of Home Affairs concerning the nominator or associated persons, or that such information can be disregarded. Furthermore, the position must remain available to the applicant, and the visa application must have been lodged within six months of the nomination's approval.

The Tribunal reasoned that although the initial nomination lodged by Dhindsa Investments Pty Ltd ATF Dhindsa Investments Trust was refused on 16 April 2018, an application for review of this refusal was lodged. Subsequently, on 14 January 2021, the Tribunal set aside the delegate's decision and substituted a new decision approving the nomination. Consequently, the Tribunal found that the nomination had been approved and had not been withdrawn, thereby satisfying clause 186.223.

Given these findings, the Tribunal remitted the visa application to the Minister for reconsideration, directing that the applicant meets criterion 186.223 for the Subclass 186 visa. The Minister is to consider the remaining criteria for the visa.