Patel (Migration)

This matter concerned a Regional Employer Nomination (Permanent) (Class RN) visa application, specifically under the Direct Entry stream for a Café or Restaurant Manager. The applicant relied on a nomination made by a sponsoring employer. The core dispute revolved around whether the employer's nomination had been approved, a crucial criterion for the visa. The decision was made by Peter Emmerton, a Member of the Tribunal.

The primary legal issue before the Tribunal was to determine whether the applicant's nomination met the requirements of clause 187.233 of the Migration Regulations 1994. This clause outlines several conditions for the nominated position, including that it must be the subject of an approved nomination application under specific subregulations, that the applicant must be identified in that nomination, that the employer making the nomination must be the prospective employer, that the nomination must have been approved and not withdrawn, and that there must be no adverse information known to the Department about the nominator or associated persons, or that such information is reasonable to disregard.

The Tribunal reasoned that while the employer's nomination application was initially refused on 30 July 2019, the Tribunal itself had, on 1 November 2022, set aside that refusal and substituted a decision approving the nomination for the position of Café or Restaurant Manager. The Tribunal was satisfied, based on the evidence, that this approved position was the same as that which was the subject of the relevant nomination application and the visa application declaration. Consequently, the Tribunal found that the applicant met the requirements of clause 187.233.

Given these findings, the Tribunal determined that the appropriate course of action was to remit the visa application to the Minister for reconsideration of the remaining visa criteria. The Tribunal directed that the first named applicant met the requirements of clause 187.233 for a Subclass 187 visa.