Sharma (Migration)

This matter concerned an appeal by an applicant for an Employer Nomination (Permanent) (Class EN) visa, subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream. The applicant's employer, Cobram Curry Pty Ltd, had lodged a nomination application which was subsequently refused by the delegate. The applicant did not dispute this refusal, nor was there evidence of any attempt to seek review of that decision or lodge a new nomination. The Tribunal was required to determine whether the applicant met the criteria for the visa.

The primary legal issue before the Tribunal was whether the applicant could satisfy the requirements of clause 186.223 of the Migration Regulations 1994, specifically concerning the nomination of the position. This clause requires that the position to which the visa application relates must be the subject of an approved nomination, and that the visa application must have been made within six months of that nomination's approval. The Tribunal also considered whether a subsequent nomination, even by the same employer for the same position, could satisfy the criteria if the initial nomination was refused.

The Tribunal reasoned that clause 186.223(1)(c) requires a declaration to be made in the visa application in relation to a specific nominated position. It held that if the initial nomination for that position was refused and not successfully reviewed or replaced, the applicant could not satisfy this criterion. The Tribunal relied on existing authority, including *Hasan v MIBP* and *Singh v MIBP*, which established that a subsequent nomination, even for the same position by the same employer, would not be the nomination in relation to which the original declaration was made. Furthermore, the Tribunal noted that the "position" referred to is a particular position that exists at the time the nomination is submitted for approval.

Consequently, the Tribunal affirmed the delegate's decision not to grant the visa. The Tribunal also affirmed the decision not to grant the second and third applicants subclass 186 visas, finding they did not meet the secondary criteria as family members and had not demonstrated they met the primary criteria in their own right.