Patel (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream, for the position of Restaurant Manager. The applicant's employer, Krishna Kant Pty Ltd ATF the Trustee for the DNP Trust, had its nomination application refused by the Department of Home Affairs. The applicant sought review of this decision before the Tribunal, presided over by Member Susan Trotter.

The primary legal issue before the Tribunal was whether the nomination for the applicant's position had been approved, as required by clause 187.233(3) of the applicable regulations. This clause mandates that the position must be the subject of an approved nomination application. The Tribunal was required to determine if the employer's nomination application, lodged on 21 December 2015, met this criterion, particularly in light of its initial refusal by the Department and subsequent review.

The Tribunal reasoned that its jurisdiction was limited to considering the specific issue of the delegate's adverse decision, in accordance with the President's Direction. It noted that the Department's initial refusal of the nomination application on 26 September 2016 had been set aside by the Tribunal on 15 January 2019, with a substituted decision to approve the nomination. Consequently, the Tribunal concluded that clause 187.233(3) was now met. The Tribunal remitted the visa application for reconsideration by the Minister, directing that the first-named applicant met the criterion under clause 187.233(3). The application of the second-named applicant, as a member of the family unit, would be determined by reference to the outcome of the first-named applicant's application upon remittal.