Sinhalage (Migration)

The Administrative Appeals Tribunal considered a decision concerning Mr. Sinhalage's application for an Employer Nomination (Permanent) (Class EN) visa, subclass 186, Temporary Residence Transition stream. The dispute arose when the nomination for Mr. Sinhalage's position, made by his employer Sightways Construction Pty Ltd, was refused by the Department. The Tribunal was asked to review this refusal.

The primary legal issue before the Tribunal was whether Mr. Sinhalage met the criteria for the subclass 186 visa, specifically clause 186.223, which requires an approved nomination. The Tribunal also considered the implications of the employer company being deregistered and the subsequent inability to review the nomination refusal.

The Tribunal reasoned that clause 186.223 requires the nomination to have been approved and not subsequently withdrawn. It noted that the employer's nomination was refused, and a subsequent attempt to review that refusal was unsuccessful because the employer company had been deregistered. Therefore, the Tribunal found that Mr. Sinhalage was not the subject of an approved nomination. This conclusion was supported by the reasoning in *Singh v Minister for Immigration and Border Protection* [2017] FCAFC 105, which held that a subsequent, new nomination would not satisfy the criterion as it would not be the nomination in relation to which the visa applicant made the required declaration.

Consequently, the Tribunal affirmed the decision not to grant Mr. Sinhalage the visa, as he failed to meet the essential requirement of having an approved nomination. The Tribunal also noted that it declined to refer the matter to the Minister for discretionary intervention due to insufficient evidence of unique or compelling circumstances.