Sharma (Migration)

This matter concerned an appeal by Mr Sharma against a decision of the Administrative Appeals Tribunal (AAT) which affirmed the refusal of his Subclass 186 Employer Nomination Scheme visa application, specifically under the Temporary Residence Transition stream. The applicant's original nomination was made by Pizza @ Home Pty Ltd, which was subsequently de-registered. The applicant's migration agent mistakenly believed that an associated entity, Berver Pty Ltd, could sponsor the applicant without a new nomination, leading to a fundamental error in the application process.

The primary legal issue before the Tribunal was whether the applicant's visa application met the requirements of clause 186.223 of the Migration Regulations 1994, which mandates that the position to which the application relates must be the subject of an approved nomination that has not been withdrawn. The Tribunal also considered whether the applicant's circumstances, including the errors made by his migration agent and the de-registration of the original nominator, constituted exceptional circumstances that might warrant a different outcome, drawing parallels with the case of *Kaur (Migration)*.

The Tribunal reasoned that the applicant was not the subject of an approved nomination as required by clause 186.223. It was established that the original nomination by Pizza @ Home Pty Ltd was refused, and a subsequent nomination by a different entity, Berver Pty Ltd, could not satisfy the criterion because it was not the nomination in relation to which the applicant made the declaration in his visa application. The Tribunal distinguished the applicant's situation from *Kaur (Migration)*, finding that the core requirement of an approved nomination for the specific position was not met, and that a new nomination by a different employer, even for the same position, would not rectify this fundamental flaw.

The Tribunal concluded that the decision under review should be affirmed. Consequently, the applicant's appeal was dismissed, and the refusal of his Subclass 186 visa application was upheld.