Thompson (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), specifically under the temporary residence transition stream. The applicant sought review of a decision to refuse their visa application. The Tribunal was required to determine whether the applicant met the criteria for the visa, particularly concerning the nomination of a position.

The central legal issue before the Tribunal was whether there was an approved nomination for the position in question, as required by clause 186.233 of Schedule 2 to the Migration Regulations 1994. This clause mandates that the position must be the subject of an approved nomination application, that the nominator must be the prospective employer, and that the nomination must not have been withdrawn. Furthermore, it requires that the visa application be made within six months of the nomination's approval and that there be no adverse information known to the Department about the nominator or associated persons, or that such information be disregarded.

The Tribunal reasoned that the nominator's application for approval of the position had been refused by the Department, and this decision had been affirmed by the Tribunal in a separate hearing. The applicant had failed to respond to an invitation to comment on this information. Applying the principles from *Singh v MIBP* [2017] FCAFC 105, which emphasised the importance of a specific, approved employer nomination as a factual event at the time of application, the Tribunal concluded that the applicant could not satisfy the criteria in cl.186.233(2) because the nomination had not been approved.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 186 visa, as the requirements for the Direct Entry stream, which was the only stream for which claims were made, had not been met.