PATEL (Migration)

This matter concerned an appeal by the applicant, Mr. Patel, against the decision of the Department of Home Affairs to refuse his application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream. The applicant sought review of this refusal before the Administrative Appeals Tribunal. The core of the dispute revolved around whether the applicant had an approved nomination for the position at Hairforce Design (Aust) Pty Ltd, which was a prerequisite for the visa grant.

The Administrative Appeals Tribunal was required to determine whether the applicant met the primary criteria for the Subclass 187 visa, specifically whether he was the subject of an approved nomination that had not been withdrawn. The Tribunal also needed to consider the adverse information provided to the applicant, which indicated that the nomination had been withdrawn by Hairforce Design (Aust) Pty Ltd on 20 March 2019.

The Tribunal reasoned that clause 187.233 of the Migration Regulations 1994 mandates that for a Subclass 187 visa to be granted, the applicant must be the subject of an approved nomination or a nomination refusal on review, and crucially, that the nomination must not have been subsequently withdrawn. The evidence before the Tribunal established that the nomination application was made on 2 February 2017, but was subsequently withdrawn on 20 March 2019. As the applicant was not the subject of an approved and un-withdrawn nomination, he failed to meet this essential criterion for the visa. Consequently, the Tribunal affirmed the decision to refuse the applicant's visa, and by extension, the visas of his family unit who were secondary applicants.