Singh (Migration)

This matter concerned an appeal by Mrs Muninder Kaur against the refusal of her Employer Nomination (Permanent) (Class EN) visa, specifically under the Temporary Residence Transition stream of the Subclass 186 visa. The core of the dispute was whether the position for which Mrs Kaur was nominated had an approved nomination, a prerequisite for her visa application.

The legal issue before the Tribunal was whether Mrs Kaur satisfied the requirements of clause 186.223 of the Migration Regulations 1994. This clause mandates that the position to which the visa application relates must be the subject of an approved nomination that identifies the applicant, has not been withdrawn, and meets other specified conditions, including the timing of the visa application relative to the nomination approval and the absence of adverse information concerning the nominator.

The Tribunal affirmed the decision to refuse the nomination because the applicant had not met the essential criterion of having an approved nomination for her position. The Tribunal noted that the review of the refusal to grant the nomination had been affirmed on 15 December 2021, and without a valid nomination, Mrs Kaur's visa application could not succeed. Despite the applicant's submissions regarding her employment history and concerns about the business's financial capacity, the Tribunal found that the requirement for a valid nomination was not discretionary and that the provisions of clause 186.223 were not met. Consequently, Mrs Kaur did not satisfy clause 186.311 of the Regulations.