Ghimire (Migration)

This matter concerned an appeal by Mr. Ghimire against a decision of the Administrative Appeals Tribunal (the Tribunal) which affirmed the refusal of his application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Employer Nomination Scheme, Temporary Residence Transition stream. The core of the dispute revolved around the validity of the employer's nomination for Mr. Ghimire's visa application.

The primary legal issue before the Tribunal was whether Mr. Ghimire had satisfied the requirements of clause 186.223 of the Migration Regulations 1994. This clause mandates that for applicants in the Temporary Residence Transition stream, the nominated position must be the subject of an approved nomination that has not been subsequently withdrawn, and the position must remain available to the applicant.

The Tribunal reasoned that a critical criterion for the grant of the visa was that the nominated position must have been approved, not subsequently withdrawn, and must still be available. The evidence established that the employer, M.P.Z. NOMINEES PTY LTD, had formally withdrawn its sponsorship and requested cancellation on 18 September 2017. Mr. Ghimire acknowledged this withdrawal and understood that, as a consequence, the nomination was no longer available to him. Based on this, the Tribunal concluded that clause 186.223 was not met.

Consequently, the Tribunal affirmed the decision not to grant Mr. Ghimire the Subclass 186 visa, as he had failed to satisfy a mandatory criterion for the visa stream for which he applied.