Sharma (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa, specifically the Temporary Residence Transition stream, by Mr. Sharma, who was nominated for a Cook position. The dispute arose because the initial nomination application was refused by a delegate of the Minister. The applicant's visa application was consequently refused on the grounds that the essential criterion of an approved nomination had not been met.

The Tribunal was required to determine whether the applicant met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994, which pertains to the approval of a nomination for the visa. This clause mandates that the position be nominated, that the nomination has been approved and not withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available, and that the visa application was lodged within six months of the nomination's approval. The Tribunal also had to consider the eligibility of secondary applicants who applied as family members of the primary applicant.

The Tribunal reasoned that while the initial nomination was refused, the nominator subsequently sought review of this decision. On review, the Tribunal set aside the delegate's refusal and substituted a decision approving the nomination. Consequently, the Tribunal found that the primary applicant, Mr. Sharma, now met the requirements of clause 186.223(2) as the nomination had been approved. However, the Tribunal could not make a direction regarding the secondary applicants' eligibility under clause 186.311 because, at the time of the decision, the primary applicant did not yet hold the Subclass 186 visa.

The Tribunal remitted the applications for reconsideration. It directed that the primary applicant, Mr. Sharma, be considered to have met the criteria under clause 186.223(2) of Schedule 2 to the Regulations. The cases of the secondary applicants were referred back to the Department for fresh consideration.