SINGH (Migration)

This matter concerned an appeal by an Indian citizen and his family members against the refusal of their Subclass 186 Employer Nomination Scheme visas. The core of the dispute revolved around whether the applicant was the subject of an approved nomination for the position of customer service manager, as required by clause 186.223 of the Migration Regulations. The Administrative Appeals Tribunal (AAT) was tasked with determining if the applicant met this essential criterion for the visa.

The Tribunal was required to consider whether the nomination application for the applicant's position had been approved and had not been subsequently withdrawn. Furthermore, it needed to ascertain if there was any adverse information known to the Department of Immigration concerning the nominator or associated persons, or if such information could reasonably be disregarded. The Tribunal also had to determine if the nominated position remained available to the applicant and if the visa application was made within the prescribed timeframe after the nomination's approval.

The Tribunal found that while the applicant had been nominated for the customer service manager position and had commenced working for the nominator, the nomination application itself was refused by a delegate of the Minister on 14 November 2017. Crucially, there was no record of this refusal being subject to a review by the nominator. Consequently, the Tribunal concluded that the applicant was not the subject of an approved nomination, and therefore, clause 186.223 was not satisfied. The Tribunal also noted the absence of further information from the applicants regarding current employment or any pending review of the nomination refusal, deeming it futile to remit the matter to the Department.

As the applicant failed to satisfy the primary requirement of having an approved nomination, the Tribunal affirmed the decision not to grant the Subclass 186 visas. The Tribunal found that the applicant had only sought to satisfy the criteria for the Temporary Residence Transition stream, and as these requirements were not met, the decision under review was affirmed.