Varsani (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding the refusal of a Subclass 186 Employer Nomination Scheme visa, specifically within the Temporary Residence Transition stream. The applicant's employer had nominated a position for the applicant as a cabinetmaker/window joiner. The core dispute revolved around whether the applicant met the criteria for the nomination, particularly in light of a previous refusal and subsequent review.

The Tribunal was required to determine if the nomination met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations. This involved assessing whether the nominated position was still available, if the nomination had been approved and not withdrawn, and crucially, whether there was any adverse information known to the Department concerning the nominator or associated persons, or if such information could be disregarded. Additionally, the Tribunal had to consider if the visa application was made within six months of the nomination's approval.

The Tribunal found that the employer's nomination application, initially refused by the Department, was subsequently set aside and approved by the Tribunal itself on 16 January 2020. Based on this, the Tribunal was satisfied that the nominator was the employer, the nomination was approved and not withdrawn, no adverse information was known or could be disregarded, the position remained available, and the visa application was lodged within the six-month timeframe. Consequently, the Tribunal concluded that clause 186.223 was met.

Given these findings, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria. The application of the second applicant, who applied as a member of the primary applicant's family unit, was also to be determined by reference to the outcome of the primary applicant's reconsidered application.