Patel (Migration)

This matter concerned an appeal by Ms. Patel against the refusal of her Employer Nomination (Permanent) (Class EN) visa, specifically under the Temporary Residence Transition stream of the Subclass 186 visa. The core of the dispute revolved around the applicant's failure to meet the nomination requirements stipulated in clause 186.223 of the Migration Regulations. The decision was made by Alison Mercer, a Member of the Tribunal.

The legal issues before the Tribunal were whether the applicant had satisfied clause 186.223, which requires an approved nomination for the position, and whether there was any discretion to overlook this requirement due to circumstances beyond the applicant's control. The Tribunal was also required to consider the implications of the employer's nomination being refused and the applicant's failure to seek review of that refusal.

The Tribunal reasoned that clause 186.223(2) mandates that the Minister must have approved the nomination, and this requirement is not subject to any discretion to waive or overlook it, even in the presence of compassionate or compelling circumstances. The evidence showed that the applicant's employer's nomination was refused on 16 October 2018, and no review of this refusal was sought within the prescribed timeframe. Consequently, the Tribunal found that the applicant was not the subject of an approved nomination, a prerequisite for meeting clause 186.223. This conclusion 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 and affirmed that the requirement for an approved nomination is a factual one that cannot be circumvented.

As the applicant failed to satisfy the essential criterion of having an approved nomination under clause 186.223, the Tribunal concluded that she could not be granted a subclass 186 visa in the Temporary Residence Transition stream. Accordingly, the Tribunal affirmed the decision not to grant the visa.