Panchal (Migration)

The Administrative Appeals Tribunal considered an appeal by Mr. Panchal against the refusal of his Employer Nomination (Permanent) (Class EN) visa, subclass 186, under the direct entry stream. The dispute centred on the applicant's eligibility for the visa, specifically concerning the requirement for an approved position nomination. The original nomination lodged by his employer, AVMCO Pty Ltd, was refused, and the Tribunal found it had no jurisdiction to review that refusal because the company had been deregistered.

The primary legal issue before the Tribunal was whether the applicant could satisfy the requirements of clause 186.233 of the Migration Regulations 1994, which mandates that the position to which the visa application relates must be the subject of an approved nomination. This clause requires the nomination to have been approved and not subsequently withdrawn, among other conditions. The Tribunal also had to consider the effect of legislative amendments and existing case law on the ability to rely on a new nomination or a nomination made in relation to a different visa application.

The Tribunal reasoned that the applicant could not meet the requirements of clause 186.233 because the original nomination had been refused and the nominating company deregistered, meaning the nomination could not be approved or relied upon. The Tribunal noted that current authority, including cases such as *Hasan v MIBP* and *Singh v MIBP*, indicates that a new nomination, even by the same employer for the same position, would not satisfy the criterion. This is because the visa application declaration refers to a specific, existing nomination at the time of the visa application, and a subsequent nomination would not be the one in relation to which that declaration was made. The Tribunal concluded that the applicant was not the subject of an approved nomination by his original employer, rendering the visa requirements unsatisfied.

Consequently, the Tribunal affirmed the decision not to grant Mr. Panchal the Employer Nomination (Permanent) (Class EN) visa.