Singh (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa, specifically under the Temporary Residence Transition stream. The applicant sought to have a decision of the Department of Immigration and Border Protection affirmed by the Tribunal. The core of the dispute revolved around whether the applicant met the nomination requirements stipulated in clause 186.223 of the Migration Regulations 1994.

The Tribunal was required to determine if the applicant had satisfied clause 186.223, which mandates that the position to which the visa application relates must be the subject of an approved nomination that identifies the visa applicant. This criterion further requires that the nomination has not been withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available, and that the visa application was lodged within six months of the nomination's approval. The Tribunal also considered the eligibility of secondary applicants, whose status was contingent on the primary applicant's success.

The Tribunal's reasoning focused on the applicant's own evidence, which indicated a lack of an approved or pending nomination identifying him as the nominee. The applicant confirmed he did not have a nomination application pending or an approved nomination. The Tribunal concluded that, based on this evidence, the applicant could not satisfy clause 186.223, as it requires either an approved nomination or a pending nomination that has not been withdrawn. Consequently, the Tribunal found that the applicant had failed to meet the essential criteria for the visa.

As the primary applicant had not met the necessary nomination requirements, the Tribunal determined that the secondary applicants also could not satisfy their eligibility criteria under clause 186.311. Therefore, the Tribunal affirmed the decision of the Department not to grant the Employer Nomination (Permanent) (Class EN) visas to the applicants.