Patel (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, specifically the Temporary Residence Transition stream. The primary applicant sought review of a decision to refuse their visa application, which was predicated on the refusal of their sponsor's nomination application by the Department. The second applicant's claim was dependent on the first applicant satisfying the primary criteria for the visa.

The central legal issue before the Tribunal was whether the primary applicant had satisfied the requirements of clause 186.223 of the Migration Regulations 1994, which pertains to the approval of a nomination. This clause requires, among other things, that the nomination has been approved and has not been withdrawn, and that the visa application was made within six months of the nomination's approval. The Tribunal was also required to consider whether a subsequent nomination by a different organisation could satisfy the requirements, given the refusal of the initial nomination.

The Tribunal reasoned that as the Department had refused the sponsor's nomination application, and this decision had been affirmed on review, the primary applicant was not the subject of an approved nomination at the time of the Tribunal's decision. Consequently, clause 186.223(2) was not met. The Tribunal further held that a new nomination by a different employer could not satisfy the requirements of clause 186.223, as the visa application must relate to the position in respect of which the declaration under paragraph 1114B(3)(d) of Schedule 1 was made. Relying on the authority of *Hasan v MIBP* [2016] FCCA 1049, the Tribunal concluded that any delay to await a new nomination would be futile. As the first applicant did not meet the primary criteria, the second applicant, as a member of the family unit, also failed to satisfy the requirements of clause 186.311.

The Tribunal affirmed the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.