Khan (Migration)

This matter concerned an appeal by Mr Shafiq Khan against a decision of the Administrative Appeals Tribunal (the Tribunal) affirming the refusal to grant him an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream. The visa application was based on a nomination by Cab Television Pty Ltd for the position of Computer Network and Systems Engineer.

The primary legal issue before the Tribunal was whether Mr Khan met the criteria for the Subclass 186 visa, specifically clause 186.223, which requires, among other things, that the nominated position be the subject of an approved nomination that has not been subsequently withdrawn. The Tribunal was required to determine the effect of Cab Television Pty Ltd withdrawing its nomination application on Mr Khan's eligibility for the visa.

The Tribunal reasoned that the withdrawal of the nomination by Cab Television Pty Ltd, communicated to the Tribunal via email and a signed withdrawal form on 8 May 2020, meant that the nomination was no longer approved and had been subsequently withdrawn. This directly contravened subclause 186.223(3) of the Migration Regulations 1994, which mandates that the nomination must not have been subsequently withdrawn. Consequently, Mr Khan was unable to satisfy the primary criteria for the grant of the visa, as an approved and un-withdrawn nomination is a prerequisite. The Tribunal noted Mr Khan's submission that he was unaware of the withdrawal and had not been working for the employer since December 2019, but this did not alter the regulatory requirement.

The Tribunal affirmed the decision not to grant Mr Khan the visa, finding that the essential requirements for the Temporary Residence Transition stream of the Subclass 186 visa had not been met due to the withdrawal of the employer's nomination.