Bemina Hennedige (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal concerning the refusal of an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream. The primary applicant, Mr. Bemina Hennedige, sought to have the Tribunal affirm a decision that refused to grant him the visa. The secondary applicants, who were not members of Mr. Hennedige's family unit, also had their visa applications refused and sought to have these decisions affirmed.

The central legal issue before the Tribunal was whether the primary applicant met the criteria for the Subclass 186 visa, specifically whether the nominated position was the subject of an approved nomination. The Tribunal was required to determine if the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994 were satisfied, which included the necessity of an approved nomination and the timing of the visa application relative to that approval.

The Tribunal reasoned that the nominator's application for approval of the nomination had been refused by the Department, and this decision had been affirmed by the Tribunal. Consequently, the nomination itself had not been approved. The Tribunal referred to the decision in *Singh v MIBP* [2017] FCAFC 105, which emphasised that the visa application is considered against a specific employer nomination and its subsequent approval. As the nomination had not been approved, the primary applicant could not satisfy clause 186.223(2). The Tribunal also noted the primary applicant's resignation from the nominated position in May 2020, which further impacted the availability of the position.

The Tribunal affirmed the decision to refuse to grant the Subclass 186 visas to the primary and secondary applicants. The secondary applicants' applications were affirmed as they were not members of a family unit of a Subclass 186 visa holder and had not met the primary criteria in their own right.