Syed (Migration)

This matter concerned an appeal by the applicant, Mr. Syed, against a decision of the Department of Immigration regarding his Employer Nomination (Permanent) (Class EN) visa application, specifically under the Temporary Residence Transition stream of the Subclass 186 visa. The dispute centred on whether the nominated position of restaurant manager remained available to the applicant and whether the nomination itself had been approved. The Administrative Appeals Tribunal (AAT) considered the evidence before it without requiring a hearing.

The primary legal issue before the Tribunal was to determine whether the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994 were met. This clause, as applicable, stipulated that the nominated position must be the subject of an approved nomination that identifies the visa applicant, that the nomination must have been approved and not subsequently withdrawn, that there must be no adverse information known to Immigration about the nominator or associated persons, or such information must be reasonable to disregard, and crucially, that the position must still be available to the applicant. The visa application also needed to be made within six months of the nomination's approval.

The Tribunal found that the employer, Red Engine Group Pty Ltd, had applied to nominate Mr. Syed for the restaurant manager position on 6 April 2017. Although this nomination was initially refused by the Department on 17 March 2018, the Tribunal, on review on 10 June 2020, set aside the Department's decision and substituted it with a decision to approve the nomination. Based on this finding, the Tribunal concluded that clause 186.223(2) of the Regulations was satisfied.

Consequently, the Tribunal remitted the visa applications for reconsideration by the Minister, directing that the first applicant, Mr. Syed, met the criteria under clause 186.223(2). The application of the second applicant, who applied as a member of Mr. Syed's family unit, was to be determined in accordance with the outcome of Mr. Syed's remitted application.