Singh (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, subclass 186, Direct Entry stream. The applicant sought to have affirmed a decision to refuse their visa application, which had been affirmed by the Department. The Tribunal was required to determine whether the applicant met the criteria for the visa, specifically concerning the nomination of the position.

The primary legal issue before the Tribunal was whether the applicant's nominated position met the requirements of clause 186.233 of the Migration Regulations 1994. This clause mandates that the position must be the subject of an approved nomination, and that the nomination must identify the applicant if made on or after 1 July 2017. Further requirements included that the nominator must be the prospective employer, the nomination must have been approved and not withdrawn, there must be no adverse information known to Immigration, the position must remain available, and the visa application must be made within six months of the nomination's approval.

The Tribunal reasoned that the applicant did not satisfy clause 186.233 because the nomination by GoGlobal Education Pty Ltd had not been approved. The Tribunal had notified the applicant under section 359A of the Migration Act 1958, inviting comment on information suggesting non-compliance with the requirement for an approved nomination. The applicant requested an extension of time to respond, citing their employer's intention to seek judicial review of the nomination refusal. However, the Tribunal concluded that as the primary criteria for the visa were not met due to the unapproved nomination, the secondary applicants also failed to meet their respective criteria.

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