Patel (Migration)

This matter concerned an appeal by a visa applicant, Mr Patel, against the refusal of his Subclass 187 (Regional Sponsored Migration Scheme) visa application. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria for the visa, specifically concerning the nomination of a position.

The primary legal issue before the Tribunal was whether the nomination of the position of Retail Manager (General) ANZSCO 142111 had been approved and met the requirements of clause 187.233 of Schedule 2 to the Migration Regulations. This clause outlines several conditions, including that the position must be nominated in accordance with specific subregulations, that the employer must be the nominator, that the nomination must have been approved and not withdrawn, that there must be no adverse information known to Immigration, that the position must still be available, and that the visa application must be made within six months of the nomination approval.

The Tribunal found that the applicant had provided sufficient evidence to satisfy clause 187.233. It relied on its previous findings in a related nomination application, which had been set aside and substituted with a decision approving the appointment for the position. The Tribunal was satisfied that the approved position was the same as that subject to the nomination and visa application declarations, and that the employer was the nominator. Consequently, the Tribunal concluded that the visa applicant met the requirements of clause 187.233.

Given these findings, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining criteria for the visa. The Tribunal directed that the applicant met the criteria specified in clause 187.233.