Sandhu (Migration)

The Administrative Appeals Tribunal considered the case of Sandhu (Migration), involving an applicant seeking a Subclass 186 Employer Nomination Scheme visa, Temporary Residence Transition stream, for the occupation of Café or Restaurant Manager. The core dispute revolved around whether the nominated position was genuine and under the direct control of the nominator, and whether the nomination itself had been approved.

The Tribunal was required to determine if the applicant was the subject of an approved nomination for the specified visa subclass. This involved assessing the delegate's previous decision, which had found that the duties of the nominated position were primarily low-level and supervisory responsibilities were only occasional, thus not demonstrating a genuine need for the nominee in that occupation. The Tribunal also had to consider the extensive documentary evidence provided, including business extracts, financial statements, job descriptions, and organisational charts.

In its reasoning, the Tribunal acknowledged the delegate's assessment that the nominated position did not appear to be genuine based on the nature of the duties and the existing staffing structure. However, after reviewing all the provided material, including financial performance indicating significant trading income and profit, and a detailed organisational chart showing the nominee as manager, the Tribunal concluded that the first named applicant met the criteria for the visa. The Tribunal applied the principles outlined in clause 186.223 of Schedule 2 to the Regulations, which govern the requirements for an approved nomination and the genuineness of the position.

Consequently, the Tribunal remitted the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration. The remittal was accompanied by a direction that the first named applicant met the specified criteria for a Subclass 186 visa, indicating that the Tribunal found sufficient evidence to support the genuineness of the nomination and the position.