Patel (Migration)

This matter concerned a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream, for a Retail Manager (General). The applicant sought review of a decision to refuse the visa. The Tribunal, constituted by Member Peter Emmerton, was required to determine whether the nomination for the position had been approved and if the applicant met the relevant criteria.

The primary legal issue before the Tribunal was to assess whether the nomination for the Retail Manager (General) position satisfied clause 187.233 of the Migration Regulations. This clause outlines several requirements, including that the position must be nominated in an application for approval, that the employer must be the nominator, that the nomination must have been approved and not withdrawn, that there must be no adverse information known to Immigration, that the position must still be available, and that the visa application must have been made within six months of the nomination approval.

The Tribunal reasoned that it had previously set aside the Department's refusal decision and substituted a decision approving the appointment for the position of Retail Manager (General). Based on the evidence presented, the Tribunal was satisfied that the approved position was the same as that which was the subject of the relevant nomination application and the visa application declaration, thus meeting subclause 187.233(1). Furthermore, the Tribunal found that the employer was the nominator, satisfying subclause 187.233(2), and that the visa applicant met the requirements of subclause 187.233(3) in light of the Tribunal's prior approval of the appointment.

Given these findings, the Tribunal determined that the visa applicant satisfied the requirements of clause 187.233. Consequently, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria, with a direction that the applicant met the specified criteria under clause 187.233.