Singh (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Direct Entry stream. The applicant sought to have a decision of the Department of Home Affairs, which refused to grant the visa, reviewed by the Tribunal. The primary issue was whether the applicant met the criteria for the visa, specifically concerning an approved nomination for the position.

The Tribunal was required to determine whether the applicant had satisfied the requirements of clause 186.233 of the Migration Regulations 1994, which pertains to the nomination of a position for a Subclass 186 visa. This clause mandates that the position must be the subject of an approved nomination application, that the nominator must be the prospective employer, and that the nomination must not have been withdrawn. Further requirements include the absence of adverse information concerning the nominator or associated persons, the continued availability of the position, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that the nominator's application for approval of the nomination was refused by the Department. Although a review application was lodged with the Tribunal, that review application was affirmed. Crucially, the applicant failed to provide any response or comment on this information. As the nomination application had not been approved, the Tribunal concluded that the applicant did not meet the criteria in cl.186.233(3). Consequently, the Tribunal affirmed the decision to refuse the Subclass 186 visa to the primary applicant, and also to the second and third applicants (spouse and child), as they could not meet the secondary criteria for family members and had not demonstrated they could meet the primary criteria independently.