SINGH (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) visa under the Temporary Residence Transition stream, for the position of Cook. The applicant’s visa application had been refused following the refusal of the employer’s nomination by the Department of Immigration and Border Protection. The Administrative Appeals Tribunal (AAT) was asked to review the decision not to approve the nomination.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223(2) of Schedule 2 to the Migration Regulations 1994. This clause mandates that the Minister must have approved the nomination, that the nomination must not have been subsequently withdrawn, that there must be no adverse information known to Immigration about the nominator or associated persons, or that any such information must be reasonable to disregard, that the nominated position must still be available to the applicant, and that the visa application must have been made within six months of the nomination's approval.

The Tribunal found that the nominating employer, Manjits Indian Restaurant (Mitali) Pty Ltd, had applied for approval of a nomination for the Cook position. This nomination was initially refused by the Department, leading to the refusal of the applicant's visa. However, on review by the Tribunal, the Department's decision was set aside, and a new decision was substituted to approve the nomination under regulation 5.19. Consequently, the Tribunal concluded that the applicant satisfied clause 186.223(2) of the Regulations.

Given these findings, the Tribunal determined that the appropriate course of action was to remit the visa application to the Minister for reconsideration. The remittal was made with the specific direction that the applicant meets the criteria stipulated in clause 186.223(2) of Schedule 2 to the Regulations, allowing the Minister to consider the remaining criteria for the grant of the visa.