Shakir (Migration)

This matter concerned an appeal by Ghulam Abbas Shakir against a decision to refuse his Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream. The primary dispute revolved around the continued availability of the nominated position of Marketing Specialist, which had been nominated by H Khans Pty Ltd. The Administrative Appeals Tribunal was required to determine whether the requirements of the Migration Regulations 1994, specifically clause 186.223, had been met.

The central legal issue before the Tribunal was whether the nominated position remained available to the applicant, as required by clause 186.223(4) of Schedule 2 to the Migration Regulations 1994. This requirement was critical given that the sponsoring company, H Khans Pty Ltd, had initially notified the Department of Immigration of its intention to withdraw the nomination. The Tribunal also considered the applicant's response, which included a statutory declaration from an individual claiming to be the director of the nominating employer, asserting a desire to retain the applicant and retracting the withdrawal request.

The Tribunal affirmed the delegate's decision to refuse the visa. The reasoning was based on significant inconsistencies identified between the information provided by the applicant and publicly available records. Specifically, the business name associated with the nomination had been deregistered prior to the applicant's response, and the nominated business address was occupied by an unrelated entity. These discrepancies led the Tribunal to conclude that the nominated position was no longer genuinely available to the applicant, thus failing to satisfy the regulatory requirements for the visa. The Tribunal noted that it remained open to the applicants to seek the Minister's intervention under section 351 of the Migration Act 1958.