Singh (Migration)

The Administrative Appeals Tribunal considered a migration matter involving an applicant seeking an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Temporary Residence Transition stream. The core dispute revolved around whether the applicant met the prescribed criteria for this visa subclass, particularly concerning the nomination of their position by the employer.

The primary legal issue before the Tribunal was to determine if the applicant satisfied clause 186.223 of the Migration Regulations 1994. This clause requires, among other things, that the position to which the visa application relates must be the subject of an approved nomination that identifies the visa applicant, and that this nomination has not been withdrawn. The Tribunal also had to consider whether the position remained available and if the application was lodged within the specified timeframe after nomination approval.

The Tribunal reasoned that a crucial requirement for the Subclass 186 visa in the Temporary Residence Transition stream is an approved nomination. It noted that while a declaration regarding the nominated position had been made, and the position was identified in relation to the applicant, the nomination itself had not been approved. The Tribunal had previously affirmed a decision to refuse the nomination under regulation 5.19. Consequently, the Tribunal concluded that the applicant had not met the necessary criteria under clause 186.223(2), which mandates that the Minister must have approved the nomination.

As a result of the applicant failing to meet the essential requirement of an approved nomination, the Tribunal affirmed the decision under review. This meant the Employer Nomination (Permanent) (Class EN) visa was not granted to the applicant or any other members of their family unit who were part of the same application.