Singh (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Direct Entry stream for the position of Cook. The applicant sought review of a decision to affirm the refusal of their visa application. The Tribunal was tasked with determining whether the applicant met the requirements of clause 186.233 of Schedule 2 to the Migration Regulations 1994.

The central legal issue before the Tribunal was whether the nominated position for the applicant as a Cook was the subject of an approved nomination, as required by clause 186.233 of the Regulations. This clause mandates that the nominated position must have been approved by the Minister and not subsequently withdrawn, among other conditions. The Tribunal also considered whether it was reasonable to disregard any adverse information known to the Department about the nominator.

The Tribunal's reasoning focused on the status of the nomination. It noted that the nominator, Food & Soul Pty Ltd, had applied to nominate the applicant for the position of Cook on 11 April 2017. However, this application for approval of the nominated position was refused by the Department on 7 November 2018. While the nominator sought review of this refusal, the Tribunal determined it lacked jurisdiction to hear that application. Consequently, the nomination relating to the position specified in the visa application had not been approved. The Tribunal advised the applicant that this lack of an approved nomination was a critical requirement for the grant of the visa. Despite the applicant's explanation of their employment history and the cessation of work due to COVID-19 restrictions, the Tribunal found that the primary requirement of an approved nomination had not been met.

The Tribunal affirmed the decision not to grant the applicant the Employer Nomination (Permanent) (Class EN) visa.