Pathak (Migration)

This matter concerned an appeal by the applicant, Mr. Pathak, against a decision relating to his application for a Subclass 186 (Employer Nomination Scheme) visa, Temporary Residence Transition stream. The dispute centred on whether the applicant met criterion 186.223 of Schedule 2 to the Migration Regulations 1994. The decision was made by Alison Mercer, a Member of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was to determine whether the applicant had satisfied clause 186.223, which outlines specific requirements for an approved nomination in the Temporary Residence Transition stream. This clause mandates that the nominated position must be the subject of an approved nomination application, that the nomination has not been withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available to the applicant, and that the visa application was lodged within six months of the nomination's approval.

The Tribunal found that the applicant's employer, D & H Restaurant Pty Ltd, had lodged a nomination application for the position of Cook with the applicant as the nominee. Although this nomination was initially refused, the Tribunal had previously set aside that refusal and substituted a decision to approve the nomination. Based on this prior decision and a review of departmental records, the Tribunal was satisfied that all sub-clauses of 186.223 were met. Specifically, the employer was identified, the nomination was approved and not withdrawn, no adverse information was known or was reasonable to disregard, the position remained available, and the visa application was made within the prescribed timeframe.

Consequently, the Tribunal remitted the applicant's visa application to the Minister for reconsideration of the remaining visa criteria. The application of the second applicant, who applied as a member of Mr. Pathak's family unit, was also to be determined by reference to the outcome of the primary applicant's reconsidered application.