Shrestha (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding the refusal of Employer Nomination (Permanent) (Class EN) visas, Subclass 186 (Employer Nomination Scheme), direct entry stream. The primary applicant, Mr. Prabin Shrestha, sought this visa, with his family members, Mrs. Prerana Singh and Master Soumya Shrestha, applying as members of his family unit. The core dispute revolved around whether the nominated position met the requirements of clause 186.233(3) of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to determine if the nominated position, Pastrycook (ANZSCO 351112), was the subject of an approved nomination that met the specific criteria outlined in clause 186.233(3). This included whether the nominating employer, Farm 186 Pty Ltd, had made a valid nomination, whether that nomination had been approved and not withdrawn, whether there was any adverse information concerning the nominator or associated persons, and whether the position remained available to the applicant within the prescribed timeframe after nomination approval.

The Tribunal found that the nominating employer's initial application for approval of the nomination was refused by the Department. However, on review, the Tribunal had previously set aside that refusal and substituted a decision to approve the nomination. Consequently, the Tribunal concluded that the first applicant, Mr. Prabin Shrestha, satisfied the requirements of clause 186.233(3). The applications of the other family members were dependent on the outcome of Mr. Shrestha's application.

Given these findings, the Tribunal remitted the visa applications to the Minister for reconsideration of the remaining criteria. The Tribunal directed that the first applicant, Mr. Prabin Shrestha, met the criteria under clause 186.233(3) of Schedule 2 to the Regulations.