Parvez (Migration)

This matter concerned an appeal by Mr Parvez against a decision by the Department of Immigration and Border Protection regarding his Subclass 187 (Regional Sponsored Migration Scheme) visa application. The core dispute revolved around whether the nominated position of Cook at Tosca Browns remained available to Mr Parvez, following a change in the business's ownership structure from a sole trader to a partnership. The Tribunal was required to determine if this change in business structure invalidated the nomination and the availability of the position.

The Tribunal considered clause 187.233 of Schedule 2 to the Migration Regulations, which outlines the requirements for a Subclass 187 visa nomination. A key criterion was that the nominated position must still be available to the applicant. At the time of the nomination's approval in October 2016, Tosca Browns was operated by Mr Toby Pinhol as a sole trader. Subsequently, on 1 September 2016, Mr Malcom Rowe invested in the business, transitioning it to a partnership between Mr Pinhol and Mr Rowe. Despite the change in business structure, the trading name, employees, and menu remained the same, and Mr Parvez continued to be employed as a Cook. The Department found that because Mr Pinhol ceased operating as a sole trader, the business was no longer actively operating, and the nominated position was therefore unavailable.

The Tribunal reasoned that the legislative requirement focused on the availability of the *position*, not necessarily the continuity of the *employer* in the exact same legal structure. Evidence indicated that the operational aspects of the café, including Mr Parvez's employment, remained unchanged. The Tribunal concluded that the Department erred in finding the position unavailable solely due to the change in business structure, as the position itself continued to exist and be filled by the applicant. Consequently, the Tribunal remitted the applications for reconsideration, directing that Mr Parvez met the criterion under clause 187.233(5). The applications of his family unit members were also remitted for reconsideration.