Jiang (Migration)

The Administrative Appeals Tribunal considered an application by Mr Jiang for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Labour Agreement stream. The primary dispute concerned whether the nominated position remained available to the applicant, particularly in light of his cessation of employment with the nominator and his current employment with another entity. The Tribunal also had regard to the applicant's claims of an unsafe workplace and injury, which were uncorroborated, and the university studies and professional employment of an adult child who was a member of the family unit.

The legal issue before the Tribunal was whether the applicant satisfied the requirements of clause 186.242 of the Migration Regulations 1994, specifically subclause (5) which mandates that the nominated position must still be available to the applicant. The Tribunal also considered the broader context of the application, including its history, which involved a previous refusal by the Department on grounds related to the provision of bogus documents or false and misleading information, leading to the non-satisfaction of Public Interest Criterion 4020.

The Tribunal's reasoning focused on the evidence presented regarding the availability of the nominated position. It noted that the Department had found the position was no longer available to the applicant, leading to a refusal. The Tribunal reviewed the evidence, including tax returns and income statements for both the applicant and his spouse, as well as documentation relating to his adult child's university studies. Despite the applicant's claims of an unsafe workplace and injury, these were not substantiated by corroborating evidence. The Tribunal concluded that the applicant had not met the requirements for the Subclass 186 visa under the Labour Agreement stream, particularly the criterion that the nominated position remains available.

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