Dhingra (Migration)

This matter concerned a review by the Migration Review Tribunal of a decision to refuse the applicant a Subclass 186 (Employer Nomination Scheme) visa. The applicant sought to satisfy the criteria for the visa under the Direct Entry stream. The core of the dispute revolved around the validity and approval of the nomination lodged by SEKHON BROS PTY LTD, which was the basis of the applicant's visa application.

The Tribunal was required to determine whether the applicant met the requirements of clause 186.233 of the Migration Regulations 1994, specifically concerning the approval of the nomination. This clause mandates that the position nominated must have been approved by the Department of Home Affairs and not subsequently withdrawn. The Tribunal also had to consider whether the applicant had provided sufficient evidence to demonstrate that this crucial criterion had been satisfied.

The Tribunal's reasoning focused on the fact that the Department of Home Affairs had refused the nomination on 3 December 2019, and the nominator had not sought a review of this decision. Consequently, the refusal stood, meaning the nomination had not been approved. As an approved nomination is a mandatory requirement for the grant of a Subclass 186 visa under the Direct Entry stream, the applicant could not satisfy clause 186.233. The Tribunal noted that the applicant had not made claims in respect of other visa streams.

Accordingly, the Tribunal affirmed the decision not to grant the applicant the Subclass 186 visa, finding that the applicant had failed to meet the essential criteria for the visa in the Direct Entry stream.