Karki (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Temporary Residence Transition stream. The applicant, represented by her nominating employer, Preet Bros Pty Ltd, sought review of a decision to refuse her visa. The core of the dispute revolved around the requirement for an approved nomination for the position of Hairdresser.

The Tribunal was required to determine whether the applicant met the criteria for the Subclass 186 visa, specifically clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause mandates that the position to which the visa application relates must be the subject of an approved nomination, identifying the visa applicant, and that this nomination must have been approved and not subsequently withdrawn. Further requirements include the absence of adverse information concerning the nominator or associated persons, the continued availability of the position, and that the visa application was made within six months of the nomination's approval.

The Tribunal affirmed the delegate's decision to refuse the nomination application, and consequently, the visa application. The Tribunal reasoned that as the nomination by Preet Bros Pty Ltd had been refused and this refusal was affirmed by the Tribunal, the essential criterion under cl.186.223(2) – that the Minister has approved the nomination – could not be satisfied. The Tribunal relied on the principles articulated in *Singh v MIBP* [2017] FCAFC 105, which emphasised that the visa scheme intends for a specific, approved nomination to be a prerequisite for a visa of this kind, functioning as a "once off" process.

As the applicant could not satisfy the requirement of an approved nomination, the Tribunal concluded that she had not met the criteria for the Subclass 186 visa in the Temporary Residence Transition stream. Accordingly, the Tribunal affirmed the decision not to grant the visa.