Kapuhen Thuduwage (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically within the Temporary Residence Transition stream, subclass 186. The applicant sought review of a decision to refuse their visa application, which was based on an approved nomination. The Tribunal was required to determine whether the applicant had satisfied the relevant criteria for this visa subclass.

The central legal issue before the Tribunal was whether the applicant had met the requirements of clause 186.223 of the Migration Regulations 1994. This clause mandates that the position to which the visa application relates must be the same position that was the subject of an approved nomination, and in relation to which the applicant made a specific declaration in their visa application. The Tribunal also considered whether a subsequent nomination, even by the same employer for the same position, could satisfy this criterion if the initial nomination was refused or withdrawn.

The Tribunal reasoned that clause 186.223 requires a direct link between the nominated position and the position declared by the applicant in their visa application. Drawing on existing authority, including cases such as *Hasan v MIBP* and *Singh v MIBP*, the Tribunal held that a new nomination, even for the same position by the same employer, could not satisfy the criterion if it was not the nomination in relation to which the applicant made the original declaration. The Tribunal noted that the "position" referred to is a specific one that exists at the time the nomination is submitted. As the applicant had not met this fundamental requirement, the Tribunal affirmed the decision under review.