Patel (Migration)

This matter concerned an application by Mr and Mrs Patel for a Regional Employer Nomination (Permanent) (Class RN) visa, subclass 187, under the direct entry stream. The application was refused by a delegate of the Minister of Home Affairs. The core of the dispute revolved around the nomination application made by Jakruma Pty Ltd, as trustee for the Jakruma Deshpande Family Trust, for the position of baker that Mr Patel intended to fill. The delegate's refusal was based on the assertion that this nomination application had not been approved, a requirement under clause 187.233(3) of Schedule 2 to the Migration Regulations. The Administrative Appeals Tribunal was tasked with reviewing this refusal.

The primary legal issue before the Tribunal was whether Mr Patel satisfied the criteria for the subclass 187 visa, specifically whether the nomination by Jakruma Pty Ltd had been approved. This was a crucial element, as clause 187.233(3) stipulated that an applicant seeking to satisfy the primary criteria under the direct entry stream must have their nominated position approved. The Tribunal also considered the implications of an adverse decision regarding the nomination application on Mr Patel's visa application.

The Tribunal's reasoning focused on the requirement for an approved nomination. It heard evidence from Mr Patel and Mr Deshpande, the director of the nominator company. The Tribunal made an adverse decision regarding the nomination application itself, finding that it was not approved. This decision was communicated to Mr Patel, who was given an opportunity to respond but declined. The Tribunal explained that because the nomination had not been approved, Mr Patel could not satisfy an essential criterion for the grant of the visa, notwithstanding the Tribunal's acceptance of his evidence regarding his work ethic and circumstances.

Consequently, the Tribunal affirmed the delegate's decision to refuse the visa application. The outcome was that Mr Patel's application for the subclass 187 visa could not succeed because the essential criterion of an approved nomination was not met.