Singh (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa, Temporary Residence Transition stream, by an applicant whose nominating employer was Shua Transport Pty Ltd. The dispute before the Tribunal was whether the relevant nomination for the position of Transport Company Manager had been approved, as required by clause 186.223 of Schedule 2 to the Migration Regulations 1994. The Tribunal, constituted by Michelle East, was required to determine if the applicant met this specific criterion.

The primary legal issue before the Tribunal was the interpretation and application of clause 186.223, which sets out several requirements for an approved nomination. These include that the nominated position must be the one identified in the visa application, that the nomination must have been approved and not withdrawn, that there must be no adverse information concerning the nominator or associated persons, that the position must remain available to the applicant, and that the visa application must be made within six months of the nomination's approval. The Tribunal had previously set aside the Department's refusal to approve the nomination and substituted a decision to approve it.

The Tribunal reasoned that on the evidence before it, all sub-clauses of clause 186.223 were satisfied. Specifically, the Tribunal found that the nominated position was the same as that in the visa application, the applicant was identified as a Subclass 457 visa holder in the nomination, the nomination had been approved and not withdrawn, there was no adverse information, the position remained available, and the visa application was lodged within the prescribed timeframe. Having found that the applicant met this criterion, the Tribunal determined that the appropriate course was to remit the visa application to the Minister for reconsideration of the remaining visa criteria.