Ghimire (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Ghimire, who sought review of a decision not to grant him an Employer Nomination (Permanent) (Class EN) visa, specifically under the Temporary Residence Transition stream for a Cook position. The core of the dispute revolved around the refusal of the employer's nomination application and the subsequent impact on Mr. Ghimire's visa application, particularly in light of unforeseen circumstances.

The primary legal issue before the Tribunal was whether the requirements of clause 186.223 of the Migration Regulations 1994 had been met, specifically concerning the approval of the nominated position. This clause mandates that the position must be the subject of an approved nomination that has not been withdrawn, that there is no adverse information concerning the nominator, and that the position remains available to the applicant. The Tribunal also had to consider the applicant's submissions regarding the delay in processing and the death of his original employer.

The Tribunal noted that the nomination application made by the applicant's original employer, E. H. Lascalles Pty Ltd, had been refused, and no review of that refusal had been pursued. This refusal directly impacted the requirement for an approved nomination. However, the Tribunal acknowledged the applicant's explanation that the delay in processing by the Department, coupled with the sudden death of his employer and the subsequent sale of the business, constituted unique and unforeseeable circumstances. Despite the refusal of the nomination and the fact that the occupation was no longer on the list for that stream, the Tribunal considered the applicant's continued employment with the new owners and the shortage of skilled workers in the regional area.

Ultimately, the Tribunal affirmed the decision not to grant the visa. While acknowledging the applicant's difficult circumstances and the Department's delay, the Tribunal concluded that the essential criterion of an approved nomination had not been met. Nevertheless, the Tribunal indicated it would refer the matter for ministerial consideration, suggesting a potential avenue for discretionary relief outside the strict application of the regulations.