Thaker (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Thaker, who sought an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream, for the position of Cook. The primary dispute revolved around the absence of an approved nomination for Mr. Thaker's visa application, a situation exacerbated by the sponsoring business ceasing operations. The Tribunal also considered the circumstances of Mr. Thaker's wife, who operated a successful business employing Australian residents, and their son's recent acquisition of Australian citizenship.

The legal issues before the Tribunal included whether the requirements of regulation 186.223 of the Migration Regulations 1994 were met, specifically concerning the existence of an approved nomination and the continued availability of the nominated position. The Tribunal also had to consider the impact of the COVID-19 pandemic on the applicant's ability to lodge new applications and the potential for Ministerial Intervention, given the applicant's submissions regarding his wife's business, their son's citizenship, and their strong desire to remain in Australia.

The Tribunal reasoned that the core requirement for an approved nomination was not met, as the sponsoring business had ceased operating and the nominator had indicated an inability to proceed. While acknowledging the applicant's submissions regarding his wife's business, their son's citizenship, and the difficulties posed by COVID-19 travel restrictions, the Tribunal found that these factors did not overcome the fundamental regulatory requirement for an approved nomination. The Tribunal applied the provisions of regulation 186.223, which mandates an approved nomination for this visa stream.

Ultimately, the Tribunal affirmed the decision not to grant Mr. Thaker the Employer Nomination (Permanent) (Class EN) visa. The matter was referred to the Department for consideration, but the Tribunal's conclusion was that the visa could not be granted based on the presented circumstances and the applicable regulations.