Sohail (Migration)

This matter concerned an appeal by Mrs Sohail and other applicants against the refusal of their Subclass 186 Employer Nomination (Permanent) (Class EN) visas, specifically under the Temporary Residence Transition stream. The core of the dispute revolved around whether the applicants met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994, which mandates an approved nomination for the position. The decision was made by Katie Malyon, a member of the Tribunal.

The Tribunal was required to determine whether the applicants satisfied clause 186.223 of Schedule 2 to the Regulations. This involved assessing whether the position to which the visa application related was the subject of an approved nomination that had not been withdrawn, and whether the visa application was made within six months of the nomination's approval. A further consideration was the existence of any adverse information concerning the nominator.

The Tribunal reasoned that the employer's nomination for the position of Recruitment Consultant had been refused by the Department and this refusal was subsequently affirmed by the Tribunal. The applicants had declared a specific nomination reference number in their visa application, but this was the same nomination that had been refused. The Tribunal relied on the Full Federal Court's decision in *Singh v MIBP* [2017] FCAFC 105, which established that the employer nomination scheme does not permit an employer to lodge repeated nomination applications for the same position and visa applicant. Consequently, the position to which the applicants' visa application related could not meet the criteria in clause 186.223(2).

As Mrs Sohail, the primary applicant, did not meet the criteria for the visa, the delegate's decision to refuse the visa applications of the other applicants, who were family members, was also affirmed. The Tribunal therefore affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to the applicants.