SHANGARI (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Temporary Residence Transition stream of the Subclass 186 (Employer Nomination Scheme). The dispute arose when the Department of Immigration refused to approve the nomination of a position for the applicant, a Graphic Pre-Press Trades Worker. The nominating employer subsequently sought review of this refusal before the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Subclass 186 visa under clause 186.223 of the Regulations, which pertains to the nomination of a position for applicants in the Temporary Residence Transition stream. This clause requires, among other things, that the nomination has been approved, is not withdrawn, the position remains available, and the visa application is made within six months of the nomination's approval. Crucially, it also requires that there be no adverse information known to Immigration about the nominator or associated persons, or that such information be reasonable to disregard. A secondary issue concerned the eligibility of the second named applicant, a family member, who did not meet the criteria for a Subclass 186 visa as the primary applicant did not yet hold the visa.

The Tribunal found that the nominating employer's application for approval of the nominated position met the requirements of subregulation 5.19(3). It was satisfied that the applicant was identified as a Subclass 457 visa holder, the position was available, and the visa application was lodged within the prescribed timeframe. While the Tribunal acknowledged adverse information concerning the nominator, specifically a prior underpayment of a Subclass 457 visa holder which resulted in a sponsorship bar, it noted that the nominator had rectified the underpayment and implemented measures to prevent recurrence. Furthermore, the Department had since approved the nominator as a standard business sponsor after the sponsorship bar had expired, indicating that the adverse information was considered reasonable to disregard.

Consequently, the Tribunal remitted the application for reconsideration with a direction that the first named applicant met the criteria under clause 186.223. The case of the second named applicant was referred to the Department for fresh consideration, as she could not meet the criteria for a Subclass 186 visa while the primary applicant did not yet hold the visa.