SINGH (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal concerning the refusal of an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream. The primary applicant, a citizen of India, applied for the visa based on a nomination by Pradeep Basker Australia Pty Ltd for the position of transport company manager. His wife and son were included as secondary applicants. The Department refused the visa application because the nomination by Pradeep Basker Australia Pty Ltd had been refused and this refusal was not successfully reviewed.

The Administrative Appeals Tribunal was required to determine whether the primary applicant met the criteria for the Subclass 186 visa, specifically clause 186.223 of Schedule 2 to the Regulations, which requires the applicant to be the subject of an approved nomination. The Tribunal also needed to consider whether it had jurisdiction to hear the application of the primary applicant's son, who was not in Australia at the time of the Department's decision or the filing of the review application.

The Tribunal reasoned that the nomination by Pradeep Basker Australia Pty Ltd was a prerequisite for the primary applicant to satisfy clause 186.223. As this nomination had been refused by the Department and the subsequent review application was withdrawn, the nomination was not approved and had been finalised. The Tribunal noted that a subsequent nomination by a different employer could not be relied upon, as the nomination must have been made at the time of the visa application. Furthermore, the Tribunal determined that it lacked jurisdiction to consider the application of the primary applicant's son because he was not in the migration zone at the relevant times.

Consequently, the Tribunal affirmed the decision not to grant the visas to the primary applicant and his wife, and found it had no jurisdiction in respect of the son's application.