Patel (Migration)

This matter concerned a review by the Administrative Appeals Tribunal (AAT) of a decision to refuse a Subclass 187 (Regional Sponsored Migration Scheme) visa under the Direct Entry stream. The applicant sought a visa as a Retail Manager (General), ANZSCO 142111. The core dispute revolved around whether the nomination for the position had been approved, a key criterion for the visa.

The Tribunal was required to determine whether the nomination for the position of Retail Manager (General) met the requirements of clause 187.233 of Schedule 2 to the Migration Regulations. This clause, as applicable, stipulated several conditions, including that the nominated position be located in regional Australia, that the nominator be the prospective employer, that the nomination be approved and not withdrawn, that there be no adverse information known to the Department or that such information be disregarded, that the position remain available, and that the visa application be lodged within six months of the nomination's approval.

The Tribunal found that the nominated position was the same as that declared in the visa application and that the nominator was indeed the prospective employer. Crucially, the Tribunal relied on its own prior decision where it had set aside the Department's refusal and substituted a decision approving the appointment for the position. Based on this prior approval, the Tribunal concluded that the nomination had been approved and that the applicant met the requirements of clause 187.233.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the first applicant satisfied the criteria under clause 187.233. The Minister was to consider the remaining criteria for the grant of the Subclass 187 visa.