Federal Circuit Court: can an existing subclass 186 visa application be "linked" to a new nomination?
Summary and discussion
A business applied for nomination under r 5.19 of the Migration Regulations 1994 and the Applicant applied for a subclass 186 visa application pursuant to that nomination application.
The Department refused the nomination application and, as a result, also refused the visa application. Both the nominator and the Applicant applied to the Tribunal for merits review of the Department's decisions.
The Tribunal affirmed the nomination refusal and then invited the Applicant to a hearing. After that hearing, the Applicant emailed the Tribunal asking "whether it was possible to change employers as he had an offer from another company who was willing to sponsor him".
The Tribunal affirmed the visa refusal and the Applicant eventually applied to the Federal Circuit Court (FCCA) for judicial review of that Tribunal decision, arguing as follows:
1. Even though the Tribunal refused the nomination it is arguable that the nomination should not be refused and the visa application is refused based on refusal of nomination. The Tribunal erred in refusing visa application and failed to give me the opportunity to seek another approved sponsor or to lodge a fresh nomination by the same company.
The question to the FCCA was whether it was possible to "link" the existing visa application with a new nomination.
The FCCA answered as follows...
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