Gervais (Migration)

This matter concerned a review application by an applicant for an Employer Nomination (Permanent) visa (Subclass 186) of the Employer Nomination Scheme. The applicant had applied for the visa based on a nomination by his former employer, M.R.V.L. Investments Pty Ltd, for the position of chef. The Tribunal, constituted by Penelope Hunter, was required to determine whether the applicant satisfied the requirements for the visa grant and whether a specific Public Interest Criterion (PIC) should be waived.

The primary legal issues before the Tribunal were whether the applicant met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994, which mandates that a nomination has not been withdrawn and the nominated position remains available to the applicant. Additionally, the Tribunal had to consider whether the applicant met the requirements of PIC 4020(1), which relates to the provision of bogus documents or false or misleading information, and if not, whether PIC 4020(1) should be waived under PIC 4020(4) due to compelling or compassionate circumstances.

The Tribunal found that the applicant's former employer, M.R.V.L. Investments Pty Ltd, had formally withdrawn its support for the applicant's visa application and terminated his employment. The applicant confirmed this information and stated he was now employed by a different business. As the nomination had been withdrawn and the position was no longer available to the applicant through the nominating employer, the Tribunal was not satisfied that the requirements of clause 186.223 were met. Furthermore, the Tribunal determined that the circumstances did not warrant a waiver of PIC 4020(1), as there were no compelling or compassionate circumstances affecting the interests of Australia or an Australian citizen, permanent resident, or eligible New Zealand citizen.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Employer Nomination (Permanent) visa.