Patel (Migration)

This matter concerned an appeal by the applicant, Mr. Patel, against the refusal of his Employer Nomination (Permanent) (Class EN) visa, specifically under the Temporary Residence Transition stream of the Subclass 186 visa. The employer's nomination application had been refused, but this refusal was subsequently set aside on review by the Tribunal. The Tribunal was tasked with determining whether the applicant was the subject of an approved nomination that met the relevant legislative criteria.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 186.223 of Schedule 2 to the Migration Regulations 1994, which governs the requirements for an approved nomination in the Temporary Residence Transition stream. This clause necessitates that the nominated position is the subject of an approved nomination application identifying the visa applicant, that the nomination has not been withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons, or that such information is reasonable to disregard, that the position remains available, and that the visa application was made within six months of the nomination's approval. The Tribunal also considered the criteria for secondary applicants under clause 186.311.

The Tribunal found that the applicant met the criteria under clause 186.223. It was satisfied that the nomination by NJB Holdings Pty Ltd for the position of internal auditor had been approved on 8 July 2019 and had not been withdrawn. Furthermore, the Tribunal determined it was reasonable to disregard any adverse information concerning the nominator or associated persons. The Tribunal also confirmed that the position remained available to the applicant and that the visa application was lodged within the prescribed six-month period following the nomination's approval. The Tribunal also found that the secondary applicants met the criteria for family members of a primary applicant who holds a Subclass 186 visa granted on the basis of satisfying primary criteria.

Consequently, the Tribunal remitted the visa applications for reconsideration by the Minister. The direction was that the first applicant met the criteria under clause 186.223, and the second and third applicants met the criteria under clause 186.311, for a Subclass 186 (Employer Nomination Scheme) visa.