Patel (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Employer Nomination Scheme, Temporary Residence Transition stream. The primary dispute revolved around whether an approved nomination existed for the applicant. The decision was made by Cathrine Burnett-Wake, a Member of the Tribunal.

The central legal issue before the Tribunal was to determine if the applicant met the requirements of clause 186.223 of Schedule 2 to the Regulations, which pertains to an approved nomination for the position. This clause requires, among other things, that the nomination has been approved, has not been withdrawn, and that the visa application was made within six months of the nomination's approval. The Tribunal also needed to consider the applications of the second, third, and fourth named visa applicants, who were family members of the primary applicant.

The Tribunal reasoned that the nominating employer, Claypots Seafood Bar St Kilda Pty Ltd, had applied for approval of a Cook position for the applicant. Although the Department initially refused to approve the nomination, the Tribunal, on review, set aside that decision and substituted an approval of the nomination under subregulation 5.19(3). The Tribunal found that as the relevant nomination had been approved, the applicant met the requirements of clause 186.223(2). Consequently, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining criteria for the primary applicant, and also for a full reconsideration of the applications of the family unit members.