Kumar (Migration)

This matter concerned applications for Employer Nomination (Permanent) (Class EN) visas, specifically Subclass 186 (Employer Nomination Scheme) in the Temporary Residence Transition stream. The applicant, Mr. Kumar, was the subject of an approved nomination, and the Administrative Appeals Tribunal (AAT) was required to review a decision concerning this nomination.

The primary legal issue before the Tribunal was whether the applicant was the subject of an approved nomination, as required by clause 186.223 of Schedule 2 to the Migration Regulations. This clause mandates that the nominated position must have an approved nomination that identifies the visa applicant, has not been withdrawn, and is supported by a declaration made as part of the visa application. Furthermore, the nomination must not be subject to adverse information, or any such information must be reasonably disregarded, the position must remain available, and the visa application must be made within six months of the nomination's approval.

The Tribunal found that the nomination by SBS Fencing Pty Ltd had been approved by the Tribunal on 12 June 2019, thereby satisfying clause 186.223(2). Given this finding, the Tribunal determined that the appropriate course of action was to remit the visa applications to the Minister for reconsideration of the remaining visa criteria. The Tribunal directed that the first applicant was considered to meet clause 186.223(2), and the second, third, and fourth applicants were considered to meet clause 186.311.