Safi (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, subclass 186, Temporary Residence Transition stream. The applicant sought review of a decision affirming the refusal of his visa application. The core of the dispute revolved around the applicant's failure to satisfy a key criterion relating to an approved employer nomination.

The Tribunal was required to determine whether the applicant met the requirements of clause 186.223 of the Migration Regulations 1994, specifically whether the position to which his visa application related was the subject of an approved nomination that had not been withdrawn. The Tribunal also considered whether compassionate circumstances raised by the applicant, such as the nomination refusal being outside his control and his long residency in Australia, could permit a waiver of this legislative requirement.

The Tribunal reasoned that clause 186.223(2) mandates that the Minister must have approved the nomination. It was not disputed that the applicant's employer's nomination had been refused by the Department and that this refusal had been affirmed by the Tribunal on a prior occasion, with the refusal decision remaining operative. Consequently, the applicant was not the subject of an approved nomination. The Tribunal found that this failure to meet the requirement of an approved nomination meant the applicant could not satisfy clause 186.223 as a whole. The Tribunal noted that even if the applicant were to obtain a new nomination, it would not be the nomination in relation to which the visa application declaration was made, referencing the reasoning in *Singh v Minister for Immigration and Border Protection* [2017] FCAFC 105. The Tribunal concluded that there was no legislative discretion to waive this requirement based on compassionate grounds.

The Tribunal affirmed the decisions not to grant the applicant the Employer Nomination (Permanent) (Class EN) visa.