SINGH (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition Stream. The applicant sought to link their visa application to a new employer nomination after their initial nomination was refused. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for the visa, specifically concerning the approval of the employer nomination.

The primary legal issue before the Tribunal was whether the applicant's visa application could be linked to a new employer nomination after the original nomination had been refused. This involved considering clause 186.223 of the Migration Regulations 1994, which requires that the position to which the application relates be the subject of an approved nomination that identifies the visa applicant. The Tribunal also had to consider the effect of the applicant's failure to provide comments in response to a notice issued under section 359A of the Migration Act 1958.

The Tribunal reasoned that the applicant's original nomination was refused by the Department and this decision was subsequently affirmed by the Tribunal. The Tribunal noted that a new nomination cannot be linked to an existing visa application, and the delegate correctly refused the application on the basis that the associated nomination had not been approved. Furthermore, the Tribunal found that the applicant failed to provide comments within the prescribed period following a section 359A notice, meaning section 359C applied and the applicant was not entitled to a hearing under section 360(3). The Tribunal concluded that, in these circumstances, it had no power to permit the applicant to appear before it, consistent with the principles in *Hasran v MIAC* [2010] FCAFC 40.

The Tribunal affirmed the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas. The secondary applicant's claim was also affirmed as the primary applicant did not meet the requirements and there was no evidence that the secondary applicant met them either.