Sharma (Migration)

This matter concerned an application for review by Mr Sharma regarding a Subclass 186 (Employer Nomination Scheme) visa. The delegate of the Minister had refused to approve the sponsor nomination, which was subsequently approved on review by the Tribunal. The central dispute revolved around whether the nomination was valid at the time of the decision.

The Tribunal was required to determine whether Mr Sharma satisfied the criteria in clause 186.223 of Schedule 2 to the Migration Regulations. This involved considering the validity of the nomination made by Law in Order, the availability of the nominated position, and whether Mr Sharma had applied for the visa within the prescribed timeframe after the nomination's approval.

The Tribunal reasoned that the evidence before it indicated that Law in Order had nominated a position for Mr Sharma under the Temporary Residence Transition Scheme, and that Mr Sharma was the holder of a relevant Subclass 457 visa. Crucially, the Tribunal set aside the initial decision to refuse approval of the nomination and substituted a decision to approve it. It found that the nomination had not been withdrawn and the position remained available to Mr Sharma. Furthermore, Mr Sharma had applied for the visa within six months of the nomination's approval. Based on these findings, the Tribunal concluded that Mr Sharma met the criteria in clause 186.223.

The Tribunal set aside the decisions under review and remitted the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration. The Tribunal directed that Mr Sharma met the criteria in clause 186.223, and the Department was to consider whether he and any secondary applicants met the remaining visa criteria.