ZHAO (Migration)

This matter concerned an appeal by Mr ZHAO against a decision of the Administrative Appeals Tribunal (AAT) which affirmed the refusal of his Subclass 186 Employer Nomination Scheme visa, Temporary Residence Transition stream. The applicant's employer had lodged an approved nomination for Mr ZHAO to work as a Head Chef. However, prior to the visa decision, the nominator company went into liquidation, rendering the nominated position no longer available.

The central legal issue before the Federal Circuit and Family Court of Australia was whether the AAT had erred in law by affirming the visa refusal, specifically in its interpretation and application of the relevant migration regulations concerning the availability of the nominated position at the time of the visa determination. The court was required to consider the impact of the nominator's liquidation on the continued validity of the nomination and the applicant's eligibility for the visa.

In his judgment, Judge Wan Shum found that the AAT had correctly applied the law. The court reasoned that the legislative framework for the Subclass 186 visa, particularly Regulation 5.19(1)(c) of the Migration Regulations 1994, requires that the nominated position must be available for the applicant at the time the visa is granted. The liquidation of the nominator company meant that the nominated position was no longer available, and therefore, the applicant could not satisfy this essential criterion for the visa. The court held that the AAT's conclusion that the applicant was not eligible for the visa was therefore not an error of law.