Bottini (Migration)

This matter concerned an application by Miss Bottini for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Direct Entry stream. The dispute arose because the nomination application made by Miss Bottini's employer, the Company, was refused by the Department. The Company did not seek a review of this refusal. The Administrative Appeals Tribunal, with Member Katie Malyon presiding, was required to determine whether Miss Bottini met the criteria for the visa, particularly cl.186.233 of Schedule 2 to the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether Miss Bottini was the subject of an approved nomination as mandated by cl.186.233. This clause requires, among other things, that the position for which the visa is sought must be the subject of an approved nomination, that the employer is the nominator, that the nomination has not been withdrawn, and that the visa application was made within six months of the nomination's approval. The Tribunal also considered the implication of a previous refusal of the nomination application and the effect of a subsequent, different nomination, referencing the Full Federal Court's decision in *Singh v MIBP* [2017] FCAFC 105.

The Tribunal reasoned that because the Company's nomination application was refused and no review was sought, there was no approved nomination in place. Consequently, the requirement under cl.186.233 that the position be the subject of an approved nomination was not met. The Tribunal noted that, following *Singh*, even a new nomination for the same position by the same employer could not satisfy the criteria, as it would not be the nomination in relation to which the visa applicant made their declaration. As Miss Bottini had not met this essential criterion for the Direct Entry stream, and had not made claims under other visa streams, the Tribunal concluded that the decision under review must be affirmed.

The Tribunal affirmed the decision not to grant Miss Bottini an Employer Nomination (Permanent) (Class EN) visa.