SINGH (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Temporary Residence Transition stream. The applicant sought to have the decision to refuse their visa application affirmed. The core of the dispute revolved around whether the applicant was the subject of an approved nomination as required by the relevant migration regulations.

The Tribunal was required to determine whether the applicant met the criteria for a Subclass 186 visa, specifically clause 186.223, which mandates that the position to which the application relates must be the subject of an approved nomination that identifies the visa applicant. This clause further requires that the nomination has been approved, not withdrawn, and that certain conditions regarding adverse information, position availability, and the timing of the visa application relative to the nomination approval are met.

The Tribunal reasoned that the applicant's sponsor, Tastrans Pty Ltd, had its nomination application refused by the Department, a decision that had been affirmed by the Tribunal. Although an appeal by the sponsor was pending before the Federal Circuit Court, at the time of the Tribunal's decision, the applicant was not the subject of an approved nomination. The Tribunal declined to postpone its decision pending the outcome of the sponsor's appeal, finding it speculative and likely to cause considerable delay. Consequently, as clause 186.223 was not met, the Tribunal affirmed the decision not to grant the visa. The applications of the secondary applicants, who relied on the primary applicant meeting the criteria, were also affirmed.