Singh (Migration)

This matter concerned an application for an Employer Nomination Scheme (subclass 186) visa, specifically the Direct Entry stream, brought before the Administrative Appeals Tribunal by an applicant and secondary applicants. The primary dispute revolved around whether the applicant met the criteria for an approved nominating sponsor and a position in which to be engaged.

The Tribunal was required to determine if the applicant satisfied clause 186.233 of Schedule 2 to the Migration Regulations, which outlines the requirements for a nominated position. This included whether the position was the subject of an approved nomination, whether the nominator was the prospective employer, if the nomination had been approved and not withdrawn, if there was no adverse information known to Immigration, if the position remained available, and if the visa application was made within six months of the nomination's approval. Additionally, the Tribunal had to consider whether the secondary applicants met the criteria for inclusion as family members of a primary visa holder.

The Tribunal reasoned that the applicant had not provided evidence demonstrating an approved nomination under regulation 5.19, as required by clause 186.233. The applicant himself acknowledged the absence of a current nomination, the refusal of the nomination application by a delegate of the Minister, and that he no longer worked for the nominator. Consequently, the Tribunal found that clause 186.233 was not satisfied. Furthermore, as the secondary applicants were not family members of a person who held a subclass 186 visa granted on the basis of satisfying primary criteria, clause 186.311 was also not met.

The Tribunal affirmed the decision not to grant the Employer Nomination Scheme (subclass 186) visas to the applicants, concluding that the criteria for the visa grant were not satisfied.