Lokawidjaja (Migration)

The applicant, Mr. Lokawidjaja, sought review of a decision to refuse him an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Temporary Residence Transition stream. The nominated occupation was Cook, and the applicant's employer was Alanas Holdings Pty Ltd, trading as C1 Café & Brasserie. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for this visa subclass, particularly concerning the approved nomination and the availability of the nominated position.

The central legal issue was whether the applicant satisfied clause 186.223 of the Migration Regulations 1994, which governs the nomination requirements for the Temporary Residence Transition stream. This clause mandates that the position must be the subject of an approved nomination that identifies the applicant and has not been withdrawn, among other conditions. The Tribunal considered whether a subsequent nomination or a new employer could satisfy this criterion, referencing relevant case law.

The Tribunal reasoned that the applicant's nominated employer, Alanas Holdings Pty Ltd, had ceased trading, rendering the nominated position unavailable and the original nomination invalid. The Tribunal found that there was no approved nomination for the applicant by his original employer, meaning he did not meet clause 186.223(2) and, consequently, clause 186.223 as a whole. The Tribunal further held, applying persuasive obiter dicta from *Singh v MIBP* and *Patel v MHA*, that even a new nomination by a different employer, or a subsequent nomination by the same employer for the same position, would not satisfy the criterion. This is because the visa application must relate to the specific position in respect of which the declaration in Schedule 1 was made, and that position must exist at the time the nomination is submitted.

As the applicant failed to meet the essential criteria for the Subclass 186 visa in the Temporary Residence Transition stream, the Tribunal affirmed the delegate's decision not to grant the visa.