SHARMA (Migration)

This matter concerned an application for a Subclass 186 Employer Nomination Scheme visa, Temporary Residence Transition stream. The applicant sought review of a decision by the Department of Immigration, which had refused the associated nomination application. The Tribunal, constituted by Bridget Cullen, was tasked with determining whether the applicant was the subject of an approved nomination.

The primary legal issue before the Tribunal was whether the applicant met the criteria set out in clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause requires, among other things, that the nominated position is the subject of an approved nomination, that the nomination has not been withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons (or such information is reasonable to disregard), that the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 reasoned that while the nomination application was initially refused by the Department, a subsequent review application finalised on 2 July 2019 resulted in the original decision being set aside and the nomination being approved. The Tribunal found that the applicant was therefore the subject of an approved nomination, that no adverse information was known to the Tribunal concerning the applicant or associated persons, that the position of Cook remained available, and that the visa application was made within the requisite timeframe. Consequently, the Tribunal concluded that clause 186.223 was met.

The Tribunal remitted the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration by the Minister, with a direction that the first named applicant meets the criteria under clause 186.223 of Schedule 2 to the Regulations.