SHERGILL (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 (Employer Nomination Scheme) Temporary Residence Transition stream. The primary dispute revolved around whether the applicant's nominated position met the requirements of clause 186.223 of Schedule 2 to the Regulations, particularly concerning the approval of the nomination. The decision was made by the Tribunal.

The central legal issue before the Tribunal was whether the applicant had satisfied the requirement that the position to which their visa application related was the subject of an approved nomination. This involved considering whether a prior refusal of the nomination by a delegate had been lawfully set aside and replaced with an approval by the Tribunal, and whether the nomination had subsequently been withdrawn. The Tribunal also had to consider the remaining criteria for the visa, as well as the applications of accompanying family members.

The Tribunal reasoned that the employer's nomination for the position of Cook had initially been refused by the Department. However, the employer had applied to the Tribunal for a review of this decision. On 8 August 2018, the Tribunal had set aside the delegate's refusal and substituted a decision to approve the nomination under subregulation 5.19(3). As this approval meant the nomination was no longer refused and had not been withdrawn, the Tribunal found that the applicant met the requirements of clause 186.223(2).

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining criteria. The Tribunal also directed that the applications of the second and third named visa applicants, who were family members of the primary applicant, should be reconsidered in full, given that the primary applicant had been found to meet the requirements of clause 186.223.