Singh (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding an application for a Subclass 186 Employer Nomination Scheme visa, specifically under the Temporary Residence Transition stream. The applicant, Mr Singh, sought to have a decision not to grant him this visa reviewed. The secondary applicant, Ms Kaur, was also a party to the proceedings.

The primary legal issue before the Tribunal was whether Mr Singh had an approved nomination for a position that had not been withdrawn, as required by clause 186.223 of the Migration Regulations. This clause mandates that the position be the subject of an approved nomination application that identifies the applicant, and that the nomination has not been subsequently withdrawn. The Tribunal also considered whether the secondary applicant, Ms Kaur, met the criteria for the visa as a member of the family unit of the primary applicant, which required the primary applicant to satisfy the criteria for the grant of the visa.

The Tribunal reasoned that the nominator, Dadaar Enterprises Pty Ltd, had withdrawn its application for review before the Tribunal on 18 March 2019. Although Mr Singh claimed ignorance of this withdrawal, the Tribunal found that this fact meant clause 186.223 was not met. As Mr Singh had only sought to satisfy the criteria for the Temporary Residence Transition stream and had failed to meet the essential requirement of an approved and unwithdrawn nomination, he could not be granted the visa. Furthermore, as neither Mr Singh nor any family member had satisfied the primary criteria, clause 186.311 was also not met.

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