TAMANG (Migration)

This matter concerned an appeal by Mr. Tamang against the refusal of his Subclass 186 Employer Nomination Scheme visa application. The core dispute revolved around the validity of the employer's nomination for the position of Cook, which had initially been refused by the Department of Immigration but was subsequently approved by the Administrative Appeals Tribunal (AAT).

The legal issue before the Tribunal was whether the applicant met the requirements of clause 186.233 of the Migration Regulations 1994, specifically concerning the approval and status of the nominated position. This clause mandates that for the Direct Entry stream, the nominated position must have been the subject of an approved nomination, that the employer who made the nomination is the one who will employ the applicant, that the nomination has not been withdrawn, that there is no adverse information known to the Department about the nominator or associated persons (or such information can be disregarded), that the position remains available, and that the visa application was made within six months of the nomination's approval.

The Tribunal reasoned that the employer, Sasman Group Pty Ltd, had applied for approval of a nomination for a Cook position. Following the Department's refusal, the employer successfully sought review by the AAT, which on 22 May 2018, set aside the Department's decision and substituted an approval of the nomination. The Tribunal was satisfied, based on the evidence before it, that Sasman Group Pty Ltd was the nominator and prospective employer, the nomination for the Cook position had been approved and not withdrawn, no adverse information was known to Immigration, the position remained available to Mr. Tamang, and the visa application was made concurrently with the nomination, thus satisfying the time limit.

Consequently, the Tribunal found that the requirements of clause 186.233 were met. The Tribunal therefore remitted the visa application to the Minister for reconsideration of the remaining visa criteria.