Haque (Migration)

The Administrative Appeals Tribunal considered an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream. The applicant sought to have a decision affirmed that denied him and his family members the visa. The core of the dispute revolved around whether the nominated position remained available to the applicant, given that the nominator's business had ceased operating and the applicant was no longer working in the nominated role.

The Tribunal was required to determine if the applicant met the criteria for the visa, specifically whether the nominated position was still available to him as required by subregulation 5.19(3) and paragraph 186.223(4) of the Migration Regulations 1994. This involved assessing the applicant's explanation for the cessation of the nominator's business and his subsequent employment, and whether these circumstances prevented the nominated position from being considered "still available."

The Tribunal reasoned that the applicant had not satisfied the requirement that the nominated position be still available. While the applicant provided explanations for the business closure, including the nominator's owner suffering a personal injury and the applicant's period of immigration detention, these did not establish that the original nominated position remained available. The applicant's own evidence indicated that the employer stated a position would be available "if I get my visa approved," suggesting a conditional offer rather than an existing, available role. Furthermore, the applicant was employed full-time by another company and only engaged in casual work for the nominator's secondary business. Consequently, the Tribunal affirmed the delegate's decision.