Rahaman (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration to refuse Subclass 186 Employer Nomination (Permanent) visas. The applicants, Mr Syed Hasib Bin Rahaman and his wife and child, all nationals of India, had applied for these visas on 29 June 2017. Mr Rahaman sought the visa under the Temporary Residence Transition stream for the nominated position of cook. The delegate's refusal was based on the applicant not meeting clause 186.223(2) of the Migration Regulations 1994, as the associated nomination application lodged by Paradise Collections Pty Ltd had been refused by the Department on 23 May 2018. The review was heard by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223(2) of the Migration Regulations 1994. This clause requires that the nominated position be the subject of an approved nomination application that identifies the applicant, and that the nomination has not been subsequently withdrawn and the position remains available. The Tribunal considered the applicant's employment history, a dispute with his employer regarding superannuation and leave entitlements, his subsequent illness and treatment for a mental health condition, and his resignation from employment with Paradise Collections Pty Ltd. The Tribunal also noted correspondence from the Fair Work Ombudsman and evidence of the employer's liquidation.

The Tribunal reasoned that the core requirement of clause 186.223(2) was that the nomination must have been approved and not subsequently withdrawn. The evidence established that the nomination application had been refused by the Department on 23 May 2018, and this refusal was not overturned. While the applicant's employer had indicated they had withdrawn their appeal to the Tribunal concerning the nomination refusal, this did not alter the fact that the initial nomination application was refused. Furthermore, the applicant had resigned from his employment on 26 November 2018, indicating the nominated position was no longer available to him.

The Tribunal affirmed the delegate's decision to refuse the visas.