Patel (Migration)

This matter concerned applications for Regional Employer Nomination (Permanent) (Class RN) visas, specifically Subclass 187 (Regional Sponsored Migration Scheme) in the direct entry stream, for a hairdresser. The primary dispute revolved around the approval of the nominated position. The Tribunal was required to determine whether the nomination had been approved and if the applicants met the relevant criteria for the visa. A further issue arose regarding the jurisdiction to review the decision in relation to a third applicant.

The Tribunal was required to consider whether the nominated position met the requirements of clause 187.233 of Schedule 2 to the Regulations, which included that the position be located in regional Australia, nominated by the prospective employer, and approved by the Minister. The Tribunal also had to determine the eligibility of the second applicant, who claimed to be a member of the family unit of the primary applicant, and the jurisdiction to review the decision concerning the third applicant.

The Tribunal reasoned that the nomination application, initially refused, was subsequently set aside and approved by the Tribunal on 15 February 2023. This satisfied the requirement that the Minister had approved the nomination. Consequently, the Tribunal found that the first applicant met the criterion under cl 187.233(3). The second applicant's application was to be reconsidered alongside the first applicant's. However, regarding the third applicant, the Tribunal found it had no jurisdiction to review the decision, as that applicant was not physically present in the migration zone at the time the review application was made, a prerequisite for review under s 338(2) and s 347(3) of the Migration Act 1958 (Cth).

The Tribunal remitted the visa applications for reconsideration in respect of the first and second named applicants, directing that the first applicant met the criterion under cl 187.233(3). The Tribunal confirmed it did not have jurisdiction in the matter of the third named applicant.