Kunwar (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa under the temporary residence transition stream. The primary applicant, Mr. Naresh Kunwar, sought the visa, and his wife, Mrs. Laxmi Kunwar, applied as a member of his family unit. The dispute arose after the Department of Immigration and Border Protection refused to approve the nomination of a position by the nominating employer, Manmaruya Hurstville Pty Ltd, which consequently led to the refusal of the visa applications. The case came before the Administrative Appeals Tribunal (AAT) for review of the nomination refusal.

The AAT was required to determine whether the applicant met the requirements of clause 186.223(2) of Schedule 2 to the Migration Regulations 1994, specifically concerning the approval of the nominated position. This clause mandates that the nominated position must have been approved by the Minister, not subsequently withdrawn, and that there must be no adverse information known to Immigration about the nominator or associated persons, or such information must be reasonable to disregard. Additionally, the position must remain available to the applicant, and the visa application must be made within six months of the nomination's approval.

The Tribunal found that the nominating employer's initial application for approval of the nomination was refused by the Department. However, on review by the AAT in a separate proceeding (AAT Case No. 1807515), the Department's decision was set aside, and a new decision was substituted to approve the nomination. Consequently, the Tribunal concluded that Mr. Kunwar satisfied clause 186.223(2). As Mrs. Kunwar's application was dependent on Mr. Kunwar's, her application would be determined by the outcome of his application upon remittal.

Given these findings, the Tribunal remitted the visa application for reconsideration by the Minister, with a direction that the first named applicant, Mr. Naresh Kunwar, meets the criteria under clause 186.223(2) of Schedule 2 to the Regulations. The Minister is to consider the remaining criteria for the visa.