Rupinderjit Singh (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream. The primary applicant sought this visa, with secondary applicants included as family members. The core of the dispute revolved around whether the nominated position for the primary applicant had been approved by the Minister, a prerequisite for visa grant.

The legal issue before the Tribunal was whether the primary applicant satisfied clause 186.223 of the Migration Regulations 1994, specifically subclause (2) which requires that the Minister has approved the nomination. This clause, along with others detailed in the attachment, outlines the criteria for a valid nomination, including its approval, non-withdrawal, the absence of adverse information, the continued availability of the position, and the timing of the visa application relative to the nomination approval.

The Tribunal reasoned that the nominating employer’s application for approval of the Graphic Pre-press Trades Worker position had been refused by a delegate of the Minister. This refusal was subsequently affirmed by the Tribunal itself on 30 July 2019. Consequently, the nomination had not been approved, meaning the primary applicant could not satisfy clause 186.223(2). As the primary applicant failed to meet the criteria for the visa, the secondary applicants, as family members, could not satisfy clause 186.311, which requires them to be members of the family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria.

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