Pei (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Temporary Residence Transition stream, for the position of Interior Decorator. The applicant's employer, PC Art Design Pty Ltd, had its nomination for the applicant refused by the Department on 10 October 2017, a decision which was subsequently affirmed by the Tribunal on review on 17 March 2020. The Tribunal, constituted by Alison Mercer, was required to determine whether the applicant met the criteria for the visa, particularly in light of the refused nomination.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 186.223 of the Migration Regulations 1994, which requires, among other things, that the position to which the application relates is the subject of an approved nomination that has not been withdrawn. The Tribunal also considered the implications of a previous refusal of the nomination on the applicant's eligibility for the visa, and whether the applicant's wife and daughter, as secondary applicants, met the relevant criteria.

The Tribunal reasoned that because the employer's nomination had been refused and this refusal affirmed on review, the applicant could not meet clause 186.223(2) or (3). The Tribunal found persuasive the reasoning in *Singh v Minister for Immigration and Border Protection* [2017] FCAFC 105, which, although concerning a similar criterion for a subclass 187 visa, held that a visa application is tied to a specific nomination and declaration made at the time. Therefore, even a new nomination for the same position would not satisfy the requirement that the application was made in relation to the specific nomination declared. Consequently, the Tribunal affirmed the decision not to grant the visa to the primary applicant, and also affirmed the decision not to grant visas to the secondary applicants, as they did not meet the criteria for family members of a subclass 186 visa holder and had not met the primary criteria in their own right.