Patel (Migration)

The matter before the Tribunal concerned a Regional Employer Nomination (Permanent) (Class RN) visa, specifically the Subclass 187 (Regional Sponsored Migration Scheme) direct entry stream, for a café or restaurant manager. The applicant sought to have the decision under review affirmed. The core of the dispute revolved around the applicant's eligibility under clause 187.233(3) of the Migration Regulations, which requires the Minister to have approved the nomination of the position.

The Tribunal was required to determine whether the applicant satisfied the criteria for the approved nomination, including that the nominated position was located in regional Australia, was the subject of an approved nomination application, and that the employer had the financial capacity to employ the nominee for at least two years. A key issue was whether the Tribunal should adjourn the proceedings to allow the applicant to pursue an appeal to the Federal Circuit Court, following the refusal of the employer nomination by the delegate and the subsequent affirmation of that refusal by the Tribunal.

The Tribunal reasoned that the employer nomination had been refused because the employer, Saanjh Unit Trust, did not demonstrate the financial capacity to employ the nominee for the required period, a criterion that also applied to the secondary applicant. While the applicant's legal representative indicated an intention to appeal to the Federal Circuit Court and implicitly sought an adjournment, the Tribunal considered the principles outlined in *Minister for Immigration and Citizenship v Li* [2013] HCA 18. The Tribunal noted that in *Li*, the High Court found it unreasonable for a tribunal to refuse an adjournment when there were good reasons to believe a favourable outcome might be obtained, and the adjournment was for a specific, articulated purpose. However, in this case, the Tribunal found that the employer's failure to meet the financial capacity requirement was a fundamental issue that could not be overcome by an appeal to the Federal Circuit Court. Therefore, an adjournment would not serve a just or reasonable purpose.

The Tribunal concluded that the decision under review should be affirmed.