Singh (Migration)

This matter concerned an application for review of a decision to refuse an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the temporary residence transition stream. The applicant sought to satisfy the primary criteria for the visa, with secondary applicants seeking to satisfy the criteria as members of the applicant's family unit.

The Tribunal was required to determine whether the applicant met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994. Specifically, the Tribunal had to consider whether the position nominated was the subject of an approved nomination that had not been withdrawn, whether there was any adverse information concerning the nominator or associated persons, whether the position remained available, and whether the visa application was made within six months of the nomination's approval.

The Tribunal reasoned that a critical requirement for the Subclass 186 visa under the temporary residence transition stream is that the position to which the application relates must be the subject of an approved nomination. The Tribunal noted that it had previously affirmed a decision to refuse a nomination in respect of the applicant's employer. Consequently, the applicant was not the subject of an approved nomination, and therefore, clause 186.223 was not met. The Tribunal expressed sympathy for the applicant's situation, acknowledging that the refusal was due to employer error, but stated it had no discretion to grant the visa without an approved nomination.

As the primary applicant did not satisfy the primary criteria for the visa, the secondary applicants, as members of the family unit, could not satisfy the secondary criteria, specifically clause 186.311. Accordingly, the Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to the applicants.