Patel (Migration)

This matter concerned an application by Mr. Patel for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Employer Nomination Scheme, Direct Entry stream. The decision under review was affirmed by the Tribunal, which found that the applicant did not meet the necessary criteria for the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the requirements of clause 186.233 of the Migration Regulations 1994. This clause mandates, among other things, that the position to which the visa application relates must have been the subject of an approved nomination application in the Direct Entry stream, identifying the applicant in relation to that position. Further requirements include that the nominator must be the prospective employer, the nomination must have been approved and not withdrawn, there must be no adverse information known to the Department about the nominator or associated persons (or such information must be disregarded), the position must remain available to the applicant, and the visa application must be lodged within six months of the nomination's approval.

The Tribunal reasoned that the evidence before it indicated that the nomination lodged by Sab Facilities Pty Ltd on behalf of the applicant had not been approved at the time of the Tribunal's decision. Consequently, the Tribunal concluded that the applicant failed to meet the essential requirements of clause 186.233. As the applicant had only sought to satisfy the criteria for the Direct Entry stream and had not made claims in respect of other visa streams, the failure to meet the Direct Entry stream requirements meant the decision under review had to be affirmed.

The Tribunal affirmed the decision not to grant Mr. Patel an Employer Nomination (Permanent) (Class EN) visa.