Shahi Khadgi (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding a Subclass 186 Employer Nomination Scheme visa application, specifically within the Temporary Residence Transition stream. The primary dispute revolved around the approval of the employer's nomination for the applicant. The Tribunal was tasked with determining whether the nomination met the relevant legislative criteria.

The central legal issue before the Tribunal was whether the employer's nomination satisfied clause 186.223 of the Migration Regulations 1994. This clause requires, among other things, that the nominated position is the subject of an approved nomination that has not been withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons, that the position remains available to the applicant, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that the employer's nomination application, initially refused by the Department, had been approved by the Tribunal itself on a prior review. Based on the Department's records, the Tribunal was satisfied that the employer was ALD Pty Ltd ATF The Espresso Nero Trust, the nomination had been approved and not withdrawn, no adverse information was known to Immigration, the position was still available, and the visa application was lodged within the prescribed timeframe. Consequently, the Tribunal concluded that clause 186.223 was met.

Given these findings, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria. The application of the second applicant, who applied as a member of the primary applicant's family unit, was also to be determined by reference to the outcome of the primary applicant's application upon remittal.