Singh and Ors v Minister for Immigration and Anor (No.2)

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration to refuse to grant Employer Nomination (Residence) (Class BW) visas to the applicants. The applicants had sought these visas based on the first applicant's proposed employment as a Retail Manager with APF Enterprises Pty Ltd, which operated a Nando's restaurant. The nominated position was intended to meet the requirements of regulation 5.19 of the Migration Regulations 1994, and the relevant visa subclass was Subclass 857 (Regional Sponsored Migration Scheme).

The primary legal issue before the court was whether the applicants met the criteria for the Subclass 857 visa, specifically clause 857.221 of Schedule 2 to the Migration Regulations 1994. This clause requires that at the time of the decision, the appointment in the employer's business for which the applicant has been nominated must have been approved. The refusal of the visas stemmed from the delegate's decision to refuse to approve the corresponding nomination from APF Enterprises Pty Ltd.

The court affirmed the decision to refuse to approve the nomination from APF Enterprises Pty Ltd. As a direct consequence of this affirmed decision, the court found that the appointment in the employer's business had not been approved. This failure to satisfy the requirement of clause 857.221 meant that the first-named visa applicant did not meet an essential criterion for the grant of the visa. Consequently, the court affirmed the decision to refuse to grant the Class BW visas to all applicants, including the family members who relied on the first applicant's eligibility.