Patel (Migration)

This matter concerned applications for Regional Employer Nomination (Permanent) (Class RN) visas, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream, for the occupation of Café or Restaurant Manager. The primary applicant was Mr Harkishan Dahyalal Patel, with his family members Ms Manishaben Harkishan Patel, Mr Dhvanit Harkishan Patel, and Miss Khushali Harkishan Patel applying as members of his family unit. The applications were before the Tribunal for review.

The central legal issue before the Tribunal was whether the applicant, Mr Harkishan Dahyalal Patel, met the requirements of clause 187.233(3) of Schedule 2 to the Migration Regulations 1994, which pertains to the approval of a nomination for a position in regional Australia. This clause requires, among other things, that the nominating employer is the person who will employ the applicant, that the nomination has been approved and not withdrawn, that there is no adverse information known to the Department about the nominator or associated persons, that the position remains available, and that the visa application was made within six months of the nomination's approval. A further issue arose regarding the Tribunal's jurisdiction over the applications of the third and fourth named applicants.

The Tribunal found that the nominating employer, Patel Brothers Enterprise Pty Ltd, had initially had its nomination refused by the Department. However, on review, the Tribunal had set aside that decision and substituted a new decision to approve the nomination. Consequently, the Tribunal concluded that Mr Harkishan Dahyalal Patel satisfied clause 187.233(3). However, the Tribunal determined it did not have jurisdiction to consider the applications of the third and fourth named applicants, Mr Dhvanit Harkishan Patel and Miss Khushali Harkishan Patel, as they did not meet the criteria for applying for review under section 347(2) of the Migration Act 1958.

Given these findings, the Tribunal remitted the visa applications for reconsideration by the Minister, with a direction that the first named applicant, Mr Harkishan Dahyalal Patel, meets the criteria under clause 187.233(3). The Tribunal also noted its lack of jurisdiction concerning the third and fourth named applicants.