Singh (Migration)

This matter concerned an application for a Subclass 187 (Employer Nomination Scheme) visa in the direct entry stream. The applicant, Mr. Singh, sought to have a position as a motor mechanic nominated for him by his employer, R I K Group Pty Ltd. However, the Department had refused to approve the nomination, and this refusal was affirmed on review by the Tribunal. The applicant then sought to satisfy the visa criteria, but legislative amendments and the prior refusal of the nomination meant that the requirements could not be met by a new nomination.

The Tribunal was required to determine whether the applicant satisfied clause 187.233 of the Migration Regulations 1994, which sets out the requirements for a nominated position in the direct entry stream. Specifically, the Tribunal had to consider whether the applicant was the subject of an approved nomination that had not been withdrawn, and whether the visa application was made within six months of the nomination's approval. The Tribunal also had to consider the impact of a previous Federal Court decision, *Singh v Minister for Immigration and Border Protection* [2017] FCAFC 105, on the interpretation of the relevant clauses.

The Tribunal reasoned that the applicant could not satisfy clause 187.233 because the nomination by R I K Group Pty Ltd had been refused and that decision affirmed. The Tribunal found that the applicant was not the subject of an approved nomination, a prerequisite for meeting the clause. Relying on *Singh v Minister for Immigration and Border Protection*, the Tribunal held that the reference in clause 187.233 to a "position" and a "nomination" refers to a specific factual event at the time of the nomination application. Therefore, even if a new nomination were obtained for the same position, it would not be the nomination in relation to which the applicant made the required declaration in their visa application.

Consequently, the Tribunal concluded that the applicant failed to meet the requirements for a Subclass 187 visa in the direct entry stream. The Tribunal affirmed the decision not to grant the visa.