POCKET OF SPICE PTY LTD (Migration)

The Administrative Appeals Tribunal (AAT) considered an application by Pocket of Spice Pty Ltd (the applicant) to approve a nomination for a Regional Sponsored Migration Scheme visa subclass 187, Direct Entry stream, for the position of Café or Restaurant Manager. The original nominator, Mr Sukhvinder Singh, had sold the business approximately two and a half to three years prior to the hearing, and the nominee's employment with the business had ceased at that time. The applicant sought to introduce a replacement sponsor, Pathak Patil Family Trust, with accompanying documentation.

The primary legal issue before the Tribunal was whether the applicant met the requirements for approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal had to determine if a replacement sponsor could be substituted for the original nominator, and if the original nomination could still be approved given the sale of the business and the cessation of the nominee's employment.

The Tribunal reasoned that regulation 5.19 contemplates an assessment of a nomination at a particular point in time, and that the scheme does not permit the substitution of one legal entity as a sponsor for another within the same visa application. This interpretation was supported by the Full Federal Court's decision in *Singh v Minister for Immigration and Border Protection* [2017] FCAFC 105, which held that employer nominations are a "one off" process. The Tribunal found that the applicant had not satisfied the criteria for the Direct Entry nomination stream, particularly as the original business was no longer operating under the original nominator and the nominee was no longer employed there.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination.