Shalu (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Temporary Residence Transition stream. The dispute arose because the applicant's original sponsor, D’Affaires Australia Pty Ltd, no longer operated the restaurant where the applicant was employed and had had its Australian Business Number cancelled. The applicant was now working for a different restaurant, Shihara Indian restaurant, and did not have a current sponsor.

The primary legal issue before the Tribunal was whether the applicant had met the requirements for the Subclass 186 visa, specifically concerning the nomination of a position and the existence of an approved standard business sponsor. The Tribunal was required to determine if the applicant's circumstances, including the cessation of the original sponsor's business operations and the applicant's current employment without a sponsor, satisfied the criteria outlined in Clause 186.223 of the Migration Regulations.

The Tribunal reasoned that Clause 186.223 requires, among other things, that the nominated position be the subject of an approved nomination that has not been withdrawn, and that the position remains available to the applicant. The evidence established that the applicant's original sponsor was deregistered and no longer a legal entity, meaning the nomination was no longer valid and the position, as originally nominated, was not available through an approved sponsor. Despite the applicant's assertions that the employer's actions were the cause of the issue and her desire to apply independently, the Tribunal found that the applicant had not met the essential criteria for the visa in the Temporary Residence Transition stream.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 186 visa, as the applicant had failed to satisfy the mandatory requirements relating to sponsorship and nomination.