SINGH (Migration)

This matter concerned an appeal by Mr. Singh against a decision not to grant him an Employer Nomination (Permanent) (Class EN) visa, specifically under the Temporary Residence Transition stream. The core of the dispute revolved around whether the nominated position remained available to the applicant, a requirement stipulated by clause 186.223 of the Migration Regulations. The Tribunal was tasked with determining if the applicant met this criterion, given significant changes to the nominating entity.

The primary legal issue before the Tribunal was whether the nominated position was still available to the applicant, as required by cl.186.223(4). This involved considering whether the nominating entity, Jacob’s Crystal Car Wash Pty Ltd, was still in operation and capable of offering the position. The Tribunal also had to assess the impact of the nominating entity's deregistration on the applicant's eligibility for the visa.

The Tribunal reasoned that the availability of the nominated position was a critical criterion for the visa. Evidence presented, including a site visit report and subsequent information regarding the deregistration of the nominating entity, indicated that the business was no longer operating and the entity itself had ceased to exist. The Tribunal noted that there were no provisions within the regulations for extenuating circumstances in such situations. Consequently, the Tribunal found that the nominated position was no longer available to the applicant, meaning he did not satisfy cl.186.223(4). As the primary applicant failed to meet this requirement, the secondary applicants, who applied as members of his family unit, also did not meet the visa criteria.

The Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to the applicants.