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, by Mr Ketankumar Bhagavanbhai Patel. The primary dispute revolved around whether the nominated position of Store Manager, under the occupation of Retail Manager (General), met the requirements of clause 187.233(3) of Schedule 2 to the Regulations. The Tribunal was also required to consider the applications of secondary applicants, Mrs Subhadraben Ketankumar Patel and two children, as members of the family unit.

The legal issues before the Tribunal were whether the nominated position was the subject of an approved nomination, whether the nominating employer was the prospective employer, and whether the nomination had been approved and not withdrawn. Additionally, the Tribunal had to determine if there was any adverse information concerning the nominator or associated persons, if the position remained available, and if the visa application was made within the prescribed timeframe after nomination approval. A further crucial issue was the Tribunal's jurisdiction concerning the secondary applicant children, specifically whether they were physically present in the migration zone when the application for review was made.

The Tribunal found that the first applicant, Mr Patel, satisfied clause 187.233(3) because the Tribunal had previously set aside the Department's refusal of the nomination and substituted a decision to approve it. The Tribunal determined that it lacked jurisdiction in relation to the third and fourth named applicants, the children, as they were not in the migration zone at the time the application for review was made, referencing sections 347(2) and 347(3) of the Migration Act 1958. Consequently, the Tribunal remitted the visa applications to the Minister for reconsideration of the remaining criteria for the visa, with a direction that Mr Patel met the specified nomination criteria.