Kumar (Migration)

This matter concerned an appeal by Amit Kumar and Renu Madaan against the Administrative Appeals Tribunal's decision to affirm the refusal of their Subclass 186 Employer Nomination (Permanent) visa applications. The applicants sought to satisfy the criteria for the Temporary Residence Transition stream of this visa subclass.

The primary legal issue before the court was whether the applicants met the requirements of regulation 186.223 of the Migration Regulations 1994. This regulation outlines several conditions for the nominated position, including that the nomination must have been approved by the Minister, not subsequently withdrawn, and that the position must still be available to the applicant. The applicants' employer, KS Khabra Pty Ltd, had ceased operations and deregistered its business, leading to the unavailability of the nominated position and the cancellation of its Australian Business Number.

The Tribunal reasoned that the core requirement of regulation 186.223(4), that the nominated position must still be available to the applicant, had not been met. The cessation of the employer's business meant the position of Cook was no longer available. Furthermore, the Tribunal noted that it had previously found it had no jurisdiction to review an application made by KS Khabra Pty Ltd, meaning the original nomination approval was not before it in a way that could satisfy the visa requirements. Consequently, the Tribunal concluded that the applicants had failed to satisfy the criteria for the visa.

The Tribunal affirmed the decision not to grant the applicants the Employer Nomination (Permanent) (Class EN) visas.