Gotame (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal concerning an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 Temporary Residence Transition stream. The applicant sought review of a decision not to grant the visa, which had been refused by the Department. The core of the dispute revolved around the applicant's employment status with the nominating employer, Socrates Coffee Co. Pty Ltd, and whether the nominated position remained available to the applicant.

The Tribunal was required to determine whether the nominated position was still available to the applicant, as mandated by clause 186.223(4) of the relevant regulations. This clause is a critical component of the Temporary Residence Transition stream requirements, stipulating that the nominated position must be genuinely available to the visa applicant at the time of the decision. The Tribunal also considered the applicant's assertion that he had not resigned and that there had been a misunderstanding with his employer.

The Tribunal affirmed the delegate's decision, finding that the applicant did not meet the criteria under clause 186.223. Despite the applicant's submissions that he had not resigned and had remained flexible during a difficult period, the Tribunal concluded that the employer had informed the Department that the applicant had resigned and that the business no longer supported the visa application. Consequently, the Tribunal determined that the nominated position was no longer available to the applicant, a mandatory requirement that it did not have the discretion to waive. As the primary applicant failed to meet this criterion, the Tribunal also found that secondary applicants associated with the application did not meet the related criteria under clause 186.311.