Singh (Migration)

This matter concerned an application for review of a decision to refuse an Employer Nomination (Permanent) (Class EN) visa. The primary applicant sought a Subclass 186 visa in the Temporary Residence Transition stream, with secondary applicants seeking to be included as family members. The Department had refused the visa application on the basis that the employer nomination lodged by Sri Guru Gobind Singh Transport Pty Ltd was not approved. The Tribunal had previously affirmed the decision not to approve the employer nomination application.

The Tribunal was required to determine whether the primary applicant met the criteria for a Subclass 186 visa, specifically clause 186.223 of Schedule 2, which pertains to the nomination of a position. This clause requires, among other things, that the nomination has been approved and has not been subsequently withdrawn, and that the visa application was made no more than six months after the nomination was approved. The Tribunal also needed to consider whether the secondary applicants met their respective criteria, which were contingent on the primary applicant meeting the requirements for the visa.

The Tribunal reasoned that clause 186.223(2) mandates that the Minister must have approved the nomination. In this case, the Tribunal had previously affirmed the decision not to approve the employer nomination application. The Tribunal had notified the applicant's representative of this affirmed decision and its relevance to clause 186.223(2), indicating that failure to meet this criterion would lead to the affirmation of the decision under review. As no response was received, the Tribunal concluded that the applicant did not meet clause 186.223(2). Consequently, the primary applicant did not meet the primary criterion for the Subclass 186 visa.

The Tribunal affirmed the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas. This was because the primary applicant failed to meet the essential criterion under clause 186.223, which in turn meant the secondary applicants could not satisfy clause 186.311, as they were not family members of a person who had met the primary requirements.