Patel (Migration)

This matter concerned an appeal by Mr. Patel against a decision of the Department of Immigration to refuse his application for a Subclass 187 Regional Employer Nomination (Permanent) visa. The appeal was heard by the Migration Review Tribunal.

The primary legal issue before the Tribunal was whether the nomination for the position of Retail Manager, which was central to Mr. Patel's visa application, had been approved and remained available to him. This required the Tribunal to consider the specific criteria outlined in clause 187.233 of the Migration Regulations, including whether the nominated position was the same as that declared in the visa application, whether the nominator was the prospective employer, and whether the nomination had been approved and not subsequently withdrawn.

The Tribunal found that the nominated position for Retail Manager was indeed the same as that declared in the visa application and that the nominator was the prospective employer. Crucially, the Tribunal determined that it had previously approved the appointment for this position under regulation 5.19(4). Based on this prior approval, the Tribunal concluded that Mr. Patel met the requirements of clause 187.233.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that Mr. Patel satisfied the criteria under clause 187.233 for a Subclass 187 visa. The Minister was to then consider the remaining criteria for the grant of the visa.