Singh (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Temporary Residence Transition stream. The applicant sought to have a decision affirmed that refused his visa application, which was linked to an employer's nomination. The core of the dispute revolved around the validity and approval of the employer's nomination, which had been refused by a delegate. The applicant argued that this refusal was flawed, but the Tribunal indicated it lacked jurisdiction to review that specific decision.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of the Migration Regulations. This clause mandates that the position to which the visa application relates must be the subject of an approved nomination that identifies the visa applicant. Crucially, it also requires that the nomination has been approved and not subsequently withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons, that the position remains available to the applicant, and that the visa application was made within six months of the nomination's approval.

The Tribunal reasoned that it could not consider the applicant's submission that the delegate's refusal of the nomination application was flawed, as it lacked the jurisdiction to set aside that decision. The nominator, a company that had since sold its business and ceased trading, had not responded to the Tribunal's invitation to provide information regarding the nomination criteria. Consequently, a differently constituted Tribunal had affirmed the delegate's decision to refuse the nomination. As the nomination had not been approved and had been affirmed as refused, the applicant could not satisfy the requirement under cl.186.223 that the position be the subject of an approved nomination.

Therefore, the Tribunal concluded that the applicant had not met the requirements for a Subclass 186 visa in the Temporary Residence Transition stream. The decision under review, which affirmed the refusal of the visa application, was affirmed by the Tribunal.