Lee (Migration)

This matter concerned an application for a Subclass 186 Employer Nomination Scheme visa, Temporary Residence Transition stream, by an applicant whose employer, Abella Travel Pty Ltd, had withdrawn the nomination. The decision under review, which affirmed the refusal of the visa, was brought before the Tribunal for reconsideration.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of the Migration Regulations 1994, specifically subclauses (2) and (3), which stipulate that the employer's nomination must have been approved and not subsequently withdrawn. The Tribunal also considered whether the applicant's circumstances, including the withdrawal of the nomination being outside their control, could permit a different outcome.

The Tribunal reasoned that the withdrawal of the nomination by the employer on 31 July 2018 meant that the applicant was no longer the subject of an approved nomination. Consequently, the applicant failed to meet clause 186.223(2) and (3). The Tribunal held that it had no discretion to consider the applicant's reasons for the withdrawal, as the criterion refers to a factual event. This interpretation was supported by the Federal Court's reasoning in *Singh v Minister for Immigration and Border Protection* [2017] FCAFC 105, which dealt with a similar criterion for a Subclass 187 visa, emphasizing that a new nomination would not relate to the original declaration made in the visa application.

The Tribunal affirmed the decision not to grant the visa. It noted that it remained open to the applicant to make a new application directly if they wished.