Ahmed (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Temporary Residence Transition stream. The applicant sought to have a decision of the Department of Home Affairs, which refused the approval of a nomination made by SHKI Pty Ltd, reviewed by the Administrative Appeals Tribunal. The Tribunal, constituted by Member Karen McNamara, was tasked with determining whether the applicant met the criteria for the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 186.223 of the Migration Regulations 1994. This clause requires, among other things, that the nominated position be the subject of an approved nomination that has not been withdrawn, that the position remains available to the applicant, and that the visa application is made within six months of the nomination's approval. Crucially, the Tribunal also considered whether the nominator, SHKI Pty Ltd, was a valid entity capable of making a nomination.

The Tribunal reasoned that the nomination made by SHKI Pty Ltd had been refused by the Department on 2 October 2018. Furthermore, information from the Australian Securities and Investments Commission (ASIC) indicated that SHKI Pty Ltd had been deregistered on 26 May 2019, with no evidence of reinstatement. This deregistration meant that the nominator was no longer a trading entity, and consequently, the position could not be considered still available to the applicant, nor could the nomination be considered approved as required by cl.186.223(2) and (4). The Tribunal also noted that the applicant failed to respond to a notice issued under s.359A of the Migration Act 1958, which invited comment on the proposed reasons for affirming the decision, including the deregistration of the nominator.

As the applicant failed to meet the essential requirements of cl.186.223, specifically concerning the approval and continued availability of the nominated position due to the nominator's deregistration, the Tribunal affirmed the Department's decision not to grant the visa. The Tribunal concluded that the applicant had not satisfied the criteria for the Subclass 186 visa in the Temporary Residence Transition stream.