1711309 (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the temporary residence transition stream. The applicant was sponsored by a business owned by his brother and his brother's friend. The core dispute revolved around whether the nominated position remained available to the applicant, particularly in light of the business being sold due to a dispute between directors and subsequently deregistered, and the applicant ceasing employment with the company in 2017.

The Tribunal was required to determine if the applicant had satisfied the criteria for the Subclass 186 visa, specifically focusing on whether the nominated position was still available to him, as mandated by clause 186.223 of the Migration Regulations. This clause requires that the nominated position be approved, not withdrawn, and crucially, that it remains available to the applicant. The Tribunal also considered whether there was any adverse information concerning the nominator or associated persons, and if the visa application was made within the prescribed timeframe after nomination approval.

The Tribunal reasoned that the applicant had provided no evidence that the sponsoring company was still operating or that the position was genuinely available to him. The applicant's own evidence indicated he had not worked for the company since 2017, and his explanation for the lack of supporting documentation, citing a relative's inability to travel due to COVID-19, was deemed insufficient to overcome the absence of proof. The Tribunal granted the applicant an additional week to provide this evidence, but upon its expiry without satisfactory documentation, it concluded that the applicant had failed to meet the essential requirements of the visa stream.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 186 visa, finding that the applicant had not met the necessary criteria, particularly the requirement that the nominated position be still available.