Singh (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, subclass 186, under the Temporary Residence Transition stream. The applicant, Mr. Singh, sought to have a decision affirmed by the Administrative Appeals Tribunal (the Tribunal) reviewed. The core of the dispute revolved around whether the nominated position remained available to Mr. Singh following a change in business ownership and the cancellation of plans to open a new restaurant.

The Tribunal was required to determine whether the nominated position was still available to the applicant, a key criterion under subclause 186.223(4) of the Migration Regulations 1994. This subclause mandates that the position to which the visa application relates must be available to the applicant at the time of the decision. The Tribunal also considered whether the nomination made by the previous owner, Harcheema Pty Ltd, remained valid and whether the applicant had met all other relevant criteria for the subclass 186 visa.

The Tribunal reasoned that Mr. Singh's employment had transferred to Net Excellence Pty Ltd following a change in ownership of the Viradat Indian Restaurant. Crucially, Mr. Singh's evidence indicated that Harcheema Pty Ltd's plans to open new restaurants, which would have provided the nominated position, were cancelled due to the COVID-19 pandemic. Consequently, the Tribunal found that the position of cook, as nominated by Harcheema Pty Ltd, no longer existed and was therefore not available to Mr. Singh. As this criterion was not met, and there was no approved nomination in place, the Tribunal affirmed the decision not to grant the visa.