Surinder Kumar (Migration)

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa, Temporary Residence Transition stream, for the position of Repair Technician. The applicant, Surinder Kumar, sought review of a decision that affirmed the refusal of his visa application. The Tribunal was required to determine whether the applicant met the criteria for the visa, specifically whether there was an approved nomination for the position.

The central legal issue before the Tribunal was the interpretation and application of Clause 186.223 of the Migration Regulations, which governs the nomination requirements for this visa subclass. This clause mandates that the position must be the subject of an approved nomination that identifies the visa applicant, and that the nomination must have been approved and not subsequently withdrawn. Further, it requires that there be no adverse information known to the Department about the nominator or associated persons, or that such information be disregarded, that the position remains available to the applicant, and that the visa application was made within six months of the nomination's approval.

The Tribunal reasoned that the nomination application made by the nominator, A.M.B.J. PTY LTD, was refused on 24 August 2018. While the nominator sought review of this refusal, the Tribunal affirmed the decision not to grant the nomination application on 2 February 2022. Consequently, the Tribunal informed the applicant that this affirmed refusal of the nomination meant that the requirement under cl.186.223(2) for an approved nomination could not be met. The Tribunal indicated that it would likely affirm the decision under review based on this failure to satisfy the nomination criterion.