Kumar (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) visa under the Temporary Residence Transition stream. The applicant sought review of a decision concerning the nomination for a Motor Mechanic (General) position.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations. This clause outlines several conditions for the nominated position, including that the nomination must have been approved and not withdrawn, that there must be no adverse information known to Immigration about the nominator or associated persons (or such information must be reasonably disregarded), that the position must still be available to the applicant, and that the visa application must have been made within six months of the nomination's approval.

The Tribunal reasoned that the Department had initially refused the employer nomination, but on review, the Tribunal had set aside that decision and substituted an approval of the nomination on 24 July 2022. As the nomination had now been approved, the Tribunal found that the first named applicant met the requirements of clause 186.223(2). Consequently, the Tribunal determined that the appropriate course was to remit the visa application for reconsideration by the Minister, directing that the first named applicant met the criteria under clause 186.223. The Tribunal also ordered that the application of the second named visa applicant be reconsidered in full.