Patel (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream, for a position as a Retail Manager. The applicant's nominating employer, D & P Patel Pty Ltd, had initially applied for approval of the nomination, which was refused by the Department. The employer then sought review of this decision before the Tribunal. The Tribunal, constituted by Member Mary Sheargold, was required to determine whether the nomination for the position had been approved.

The central legal issue before the Tribunal was whether the requirements of clause 187.233 of Schedule 2 to the Migration Regulations 1994 were met, specifically concerning the approval of the nomination. This clause, as applicable, required that the nominated position be located in regional Australia, be the subject of an approved nomination that had not been withdrawn, and that the visa application be made within six months of the nomination's approval, among other conditions. The Tribunal also considered the specific requirements for nominations made on or after 1 July 2017, which included identifying the applicant in relation to the position.

The Tribunal reasoned that the employer's application for review of the Department's refusal to approve the nomination had been successful. On 6 February 2020, the Tribunal set aside the Department's decision and substituted a decision to approve the nomination under subregulation 5.19(4). As the nomination had been approved, the Tribunal found that the first named applicant met the requirement in clause 187.233(3). Consequently, the Tribunal determined that the appropriate course was to remit the visa application to the Minister for reconsideration of the remaining visa criteria, including those pertaining to the secondary applicant.