Patel (Migration)

This matter concerned a review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed the refusal of a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream, for the applicant, Mr. Patel. The core of the dispute revolved around whether the applicant satisfied the requirements of clause 187.233(3) of the Migration Regulations 1994, specifically concerning the approval of an employer nomination.

The legal issue before the court was whether the applicant had met the criterion that the Minister had approved the nomination for the position. This involved determining whether the applicant could rely on a subsequent nomination application after the initial employer nomination was refused, particularly in light of the Tribunal's finding that the employer lacked the financial capacity to employ the nominee for at least two years. The applicant sought an extension of time to find a new employer, understanding that repeated employer nominations could not be linked to the current visa application.

The Tribunal reasoned that the structure of regulation 5.19 contemplates an assessment of a nomination at a particular point in time, with the only contemplated variation being review by the Tribunal. The Tribunal relied on the Full Federal Court's decision in *Singh v Minister for Immigration and Border Protection* [2017] FCAFC 105, which, referencing *Berenguel v Minister for Immigration and Citizenship* [2010] HCA 8, established that the merits review process allows for new material to be adduced to satisfy the Tribunal that a nomination should be approved. However, this mechanism does not permit repeated nomination applications to be filed in relation to the same visa application and applicant. The Tribunal concluded that the scheme intends a "once off" process, where the visa application is considered against a specific employer nomination and its approval.

Consequently, the Tribunal affirmed the decision under review.