Singh (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal concerning an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream. The primary applicant sought this visa as a telecommunications technician, supported by a nomination from Eleko Pty Ltd. The secondary applicant was a member of the primary applicant's family unit.

The central legal issue before the Tribunal was whether the primary applicant was the subject of a nomination approved by the Minister in accordance with Regulation 186.223 of the Migration Regulations 1994. This regulation requires, among other things, that the nominated position is the subject of an approved nomination application that identifies the visa applicant, that the nomination has not been withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons, that the position remains available to the applicant, and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 approval.

The Tribunal found that the Department had initially refused the nominator's application due to a failure to upload supporting documents, and no evidence was provided for the nominee's application. However, the Tribunal noted that subsequent information lodged supported the nomination. On 21 September 2020, the Tribunal made an order setting aside the Department's decision, remitting the matter, and approving the nomination by Eleko Pty Ltd. The Tribunal was satisfied that the nominator was now the subject of an approved nomination, that the nominee was not the subject of adverse information, that the position remained available, and that the visa application was made within the prescribed timeframe. Consequently, the Tribunal remitted the primary applicant's visa application to the Minister for consideration of the remaining criteria, and similarly remitted the secondary applicant's application.