WU (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, in the Direct Entry stream. The applicant sought to have a decision of the Department of Immigration, which refused their visa application, reviewed by the Tribunal. The core of the dispute was whether the applicant had satisfied the requirements of clause 186.233 of Schedule 2 to the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the position nominated by the employer for the applicant was the subject of an approved nomination as required by cl.186.233. This clause mandates that for the Direct Entry stream, the nominated position must be one for which an application for approval of nomination has been made and subsequently approved, and that the visa application relates to this specific, approved nomination. The Tribunal was required to determine if the applicant had met this criterion, considering the status of the employer's nomination application.

The Tribunal reasoned that the applicant could not satisfy cl.186.233 because the employer's application to nominate the applicant for the position of Cook had been refused by the Department, and this refusal had been affirmed by the Tribunal. Consequently, there was no approved nomination in place. The Tribunal relied on the principles articulated in *Singh v MIBP* [2017] FCAFC 105, which emphasised that the visa application must be considered against a specific, approved employer nomination. The court in *Singh* highlighted that the nomination process is intended to be a "once off" verification of a particular job with a particular employer at a specific point in time. As the applicant's nominated position was not the subject of an approved nomination, this essential criterion for the visa could not be met.

The Tribunal affirmed the decision not to grant the applicant the Subclass 186 visa.