Sharma (Migration)

This matter concerned an appeal by an applicant for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream, and a related application by a second applicant as a member of the applicant's family unit. The decision was made by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994, specifically concerning the approval of a nomination for the position of Chef. A secondary issue arose regarding the eligibility of the second applicant, whose application was contingent on the first applicant being granted a Subclass 186 visa.

The Tribunal reasoned that the nomination, initially refused by a delegate of the Department, had been approved by the Tribunal on 26 February 2020, setting aside the delegate's decision. This approval satisfied the requirement under clause 186.223(2) that the Minister had approved the nomination. The Tribunal also found that the position remained available to the applicant. Consequently, the Tribunal concluded that the first applicant met the criteria under clause 186.223(2). However, as the first applicant did not hold a Subclass 186 visa at the time of the Tribunal's decision, the Tribunal could not direct that the second applicant met the requirements of clause 186.311.

The Tribunal remitted the applications for reconsideration. It directed that the first named applicant met the criteria specified in clause 186.223(2) of Schedule 2 to the Regulations. The application made by the second named applicant was referred to the Department for fresh consideration.