Patel (Migration)

The Administrative Appeals Tribunal (AAT) considered a decision concerning an application for a Subclass 186 (Employer Nomination Scheme) visa, Temporary Residence Transition stream. The applicant, Mr. Patel, sought to have a decision affirmed that refused him this visa. The refusal was based on the fact that the nomination application lodged by his employer, Zoom Hand Carwash and Café Pty Ltd, was refused by the Department of Home Affairs, meaning Mr. Patel was not the subject of an approved nomination. Consequently, his wife and son, who were secondary applicants, also did not meet the criteria for their visas.

The primary legal issue before the Tribunal was whether Mr. Patel met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause, in the context of the Temporary Residence Transition stream, requires, among other things, that the nominated position be the subject of an approved nomination that has not been withdrawn, that there is no adverse information known to the Department about the nominator or associated persons, that the position remains available to the applicant, and that the visa application was made within six months of the nomination's approval.

The Tribunal reasoned that the fundamental requirement for an approved nomination had not been met, as the Department had refused the nomination application. Because the nomination was not approved, Mr. Patel could not satisfy clause 186.223 as a whole, and therefore could not meet the criteria for the Subclass 186 visa in the Temporary Residence Transition stream. The Tribunal noted that no claims were made in respect of other visa streams.

Accordingly, the Tribunal affirmed the decision under review, concluding that Mr. Patel did not meet the necessary visa criteria.