SINGH (Migration)

This matter concerned an appeal by Mr. Singh and his family against the refusal of their Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream. The primary issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of the Migration Regulations 1994, specifically concerning the nomination of a position.

The Tribunal was required to determine if the position to which the visa application related was the subject of an approved nomination that had not been withdrawn, if there was no adverse information concerning the nominator or associated persons, if the position remained available to the applicant, and if the visa application was made within six months of the nomination's approval. The applicants argued that they had worked diligently for the nominating business, which had since ceased to operate, and that delays in processing had contributed to their current predicament. They expressed financial hardship and a desire for their child to have a future in Australia.

The Tribunal acknowledged the applicants' difficult circumstances and expressed sympathy, but emphasised its obligation to apply the legislation as written. It found no evidence that the applicant was subject to an approved nomination that had not been withdrawn. The Tribunal noted that the nominator had ceased to operate as a business, which meant the position was no longer available. The Tribunal also clarified that it lacked the power to permit the applicants to remain in Australia to apply for a different visa, advising them to seek advice from the Department of Home Affairs on such matters.

Consequently, the Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visa.