JASPREET SINGH (Migration)

The Administrative Appeals Tribunal considered an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, made by Jaspreet Singh. The primary issue before the Tribunal was whether the applicant had an approved nomination for the position he sought to be granted a visa for.

The Tribunal was required to determine if the applicant met the criteria for a Subclass 186 visa, specifically clause 186.223, which mandates an approved nomination for applicants in the Temporary Residence Transition stream. This includes requirements that the nomination has been approved, not withdrawn, and that certain conditions regarding adverse information and the availability of the position are met. The Tribunal also considered whether a subsequent nomination could satisfy the criteria, given the applicant's declaration in his visa application related to a specific, earlier nomination.

The Tribunal noted that the employer, Tong Metal, had lodged an application for approval of an employer nomination, which was refused by the Department on 13 May 2016. This refused nomination was the one referred to in the applicant's visa application. While a new nomination application was lodged on 14 March 2017, it had not yet been approved. The Tribunal relied on the Full Federal Court's decision in *Singh v Minister for Immigration and Border Protection* [2017] FCAFC 105, which held that a subsequent nomination for the same position cannot be relied upon to meet the criteria if the applicant's declaration in the visa application referred to a different, earlier nomination. The Court reasoned that the provision refers to a factual event, the specific nomination in relation to which the declaration was made.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Subclass 186 visa, as he did not have an approved nomination that met the requirements of the Regulations. The Tribunal also affirmed the decision not to grant a visa to the second applicant, who did not meet the secondary criteria as a family unit member and had not demonstrated she met the primary criteria in her own right.