SHAHBAZ (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream, for the position of Transport Company Manager. The applicant, Mr Abdul Baseer Shahbaz, had his visa application refused after the Department of Immigration and Border Protection initially refused to approve the nomination by his employer, Around Transports Pty Ltd. The Administrative Appeals Tribunal (AAT) was required to review the decision not to approve the nomination.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223(2) of Schedule 2 to the Migration Regulations 1994. 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the nominated position must be the subject of an approved nomination that identifies the visa applicant, has not been withdrawn, and for which there is no adverse information known to Immigration, or such information is reasonable to disregard. Furthermore, 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 application for approval of the nomination had initially been refused by the Department. However, following a review by the Tribunal in a separate proceeding (AAT Case No. 1800096), the Department's decision was set aside, and the nomination was approved under regulation 5.19(3). Consequently, the Tribunal concluded that the applicant satisfied clause 186.223(2). The applications of the other named applicants, who were family members, were to be determined by reference to the outcome of Mr Shahbaz's application.

The Tribunal remitted the visa applications for reconsideration by the Minister, with a specific direction that the first named applicant, Mr Abdul Baseer Shahbaz, meets the criteria under clause 186.223(2) of Schedule 2 to the Regulations. The Minister was directed to consider the remaining criteria for the visa.