Gaba (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 primary dispute concerned the availability of the nominated position for the applicant, a cook, given that the nominating entity had ceased operating and was subsequently deregistered.

The legal issue before the Tribunal was whether the nominated position remained available to the applicant, as required by clause 186.223(4) of the Migration Regulations. This clause mandates that the nominated position must still be available to the applicant at the time of the decision. The Tribunal also had to consider whether the applicant met the overall requirements of clause 186.223, which includes the nomination being approved and not withdrawn, and the position being available.

The Tribunal reasoned that the evidence clearly indicated the nominating entity had ceased operating and was deregistered. The applicant himself acknowledged that the company had closed down and there was no longer a position available for him. The Tribunal noted that it had no discretion to consider the applicant's personal circumstances, such as his length of residence or skills, and was bound by the legislative provisions. Based on the deregistration of the nominator and the applicant's confirmation of the closure of the business and unavailability of the position, the Tribunal found that clause 186.223(4) was not met.

Consequently, the Tribunal affirmed the decision not to grant the applicant the visa. As the primary applicant did not meet the visa requirements, the secondary applicant, who applied as a member of the family unit, also did not meet the requirements, and the decision in respect of the secondary applicant was also affirmed.