Singh (Migration)

This matter concerned an appeal by the applicant against the affirmation of a decision not to grant them an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Employer Nomination Scheme, Temporary Residence Transition stream. The core of the dispute revolved around whether the applicant met the criteria for an approved nomination for the position of Motor Mechanic.

The Tribunal was required to determine whether the applicant satisfied clause 186.223 of the Migration Regulations, which stipulates that the position to which the visa application relates must be the subject of an approved nomination that identifies the visa applicant. This criterion further requires that the nomination has been approved, not withdrawn, and that the visa application was made within six months of the nomination's approval, among other conditions. The Tribunal also considered whether a subsequent nomination, even for the same position by the same employer, could satisfy the requirements, given that the initial nomination had been refused.

The Tribunal reasoned that the applicant could not meet the requirements of clause 186.223 because the employer's nomination for the applicant's position was refused by the Department and no review application was lodged. Citing established authority, including *Hasan v MIBP* and *Singh v MIBP*, the Tribunal held that a subsequent nomination, even for the same position by the same employer, could not be relied upon to satisfy the criteria. This was because the visa application declaration was made in relation to a specific, initial nomination, and the "position" referred to is a particular one that exists at the time the nomination is submitted for approval. The Tribunal also affirmed the decision not to grant visas to the other named applicants, finding they did not meet the secondary criteria as family members of a Subclass 186 visa holder and had not demonstrated they met the primary criteria in their own right.

The Tribunal affirmed the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.