Curry (Migration)

The Administrative Appeals Tribunal (AAT) considered a review application concerning an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the temporary residence transition stream. The applicant, Lewis Curry, sought to have a refusal of a related position nomination affirmed. The dispute arose after the nominating company, Smashcare Holdings Pty Ltd, was acquired by AMA Group Solutions Pty Ltd, with the applicant continuing his employment with the new entity.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of the Migration Regulations 1994. This clause mandates that the nominated position must have been approved and not subsequently withdrawn, that there must be no adverse information known to Immigration about the nominator or associated persons, and that the position must still be available to the applicant. The Tribunal also had to consider whether the acquisition of the nominating company affected the validity of the nomination and the applicant's eligibility.

The Tribunal reasoned that the original nominator, Smashcare Holdings Pty Ltd, was the entity that needed to satisfy the criteria for nomination approval. Despite the applicant's continued employment with the acquiring company, AMA Group Solutions Pty Ltd, and the submission that the entities were "associated" under corporate law, the Tribunal found that the review rights and the nomination itself did not automatically transfer to the new owner. The Tribunal noted that the nominator did not appear to provide evidence at the hearing. While acknowledging the applicant's long-term employment and the genuine need for the position, the Tribunal concluded that the requirements of clause 186.223 were not met in relation to the original nomination.

Consequently, the Tribunal affirmed the decision not to grant the visa. However, the Tribunal considered the circumstances of the applicant's case to be unusual, given his continuous employment and the corporate changes beyond his control. Therefore, the Tribunal requested that the case be brought to the attention of the Minister for consideration of discretionary intervention powers under section 351 of the Migration Act 1958.