Modi (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) Temporary Residence Transition stream. The applicant's nominating employer, The Trustee for the Vishal Modi Family Trust, had previously had its nomination for the position of Café or Restaurant Manager refused by the Department. The Administrative Appeals Tribunal (the Tribunal) had reviewed this refusal and set aside the Department's decision, substituting a decision to approve the nomination. The current decision by Member Nicola Findson addressed whether the applicant met criterion 186.223 of Schedule 2 to the Regulations.

The primary legal issue before the Tribunal was to determine whether the applicant satisfied clause 186.223, which outlines requirements for the nominated position in the Temporary Residence Transition stream. This clause mandates that the nominated position must be the subject of an approved nomination that identifies the visa applicant, has not been withdrawn, and for which there is no adverse information known to Immigration about the nominator or associated persons, or such information is reasonable to disregard. 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 found that the applicant met the requirements of clause 186.223. It was satisfied that the position was nominated in accordance with subregulation 5.19(3), that the applicant was identified as a Subclass 457 visa holder in relation to that nomination, and that the necessary declaration was made in the visa application. The Tribunal also confirmed that the nomination had been approved, not withdrawn, the position remained available, the visa application was lodged within the six-month timeframe, and no adverse information was known to Immigration.

Consequently, the Tribunal remitted the visa application for reconsideration by the Minister, directing that the applicant had met the criteria under clause 186.223 for a Subclass 186 visa.