Nath (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream, for a cook. The applicant's employer, Agaman Food & Beverage Pty Ltd, had made a nomination which was initially refused by the Department. The applicant sought review of this refusal before the Tribunal.

The primary legal issue before the Tribunal was whether the nomination made by Agaman Food & Beverage Pty Ltd was approved and met the requirements of clause 186.223 of Schedule 2 to the Regulations. This clause, as applicable, required that the nominated position be the subject of an approved nomination that identified the visa applicant, had not been withdrawn, and was still available to the applicant, among other conditions.

The Tribunal found that the Department's decision to refuse the nomination had been set aside and a decision approving the nomination had been substituted under regulation 5.19(3). Consequently, the Tribunal concluded that the applicant met the requirements of clause 186.223(2). Given this finding, the Tribunal determined that the appropriate course was to remit the visa application to the Minister for reconsideration of the remaining criteria for the visa for the first applicant, and in full for the second, third, and fourth named visa applicants.