Sidhu (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream, made by Mr. Sidhu. The dispute centred on whether the nomination of the position by Saffron Indian Cuisine NSW Pty Ltd had been approved, a prerequisite for the visa. The case came before the Tribunal for reconsideration following a previous judicial review.

The primary legal issue before the Tribunal was whether the applicant satisfied the requirements of clause 186.223(2) of Schedule 2 to the Migration Regulations 1994, which mandates that the Minister has approved the nomination. This clause was critical because the Department had initially refused the nomination, a decision that was affirmed by the Tribunal, but subsequently set aside by the Court on judicial review, leading to a remittal.

The Tribunal reasoned that following the Court's remittal, a new decision was made on 3 March 2022, which set aside the Department's refusal and substituted a decision approving the nomination. As the nomination had now been approved, the Tribunal concluded that the applicant met the criterion in clause 186.223(2). Consequently, the Tribunal remitted the visa application to the Minister with a direction that the applicant satisfied this specific criterion, with the Department to consider the remaining visa eligibility requirements.