Patel (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, subclass 187, in the direct entry stream. The primary applicant sought to satisfy the criteria for this visa, while Mr. Sachin Mukeshkumar Patel and Master Heeyan Sachin Patel were secondary applicants, seeking to be granted the visa as members of the family unit of the primary applicant. The decision under review affirmed the refusal of the visa application for both the primary and secondary applicants.

The central legal issue before the Tribunal was whether the primary applicant met the requirements of clause 187.233(3) of the Migration Regulations 1994, which mandates that the Minister has approved the nomination for the position. This clause, as applicable, requires the position to be located in regional Australia, to be the subject of an approved nomination application, and for the nominating company to be the prospective employer. Further requirements include that the nomination has not been withdrawn, there is no adverse information known to Immigration, the position remains available, and the visa application was made within six months of the nomination approval. For the secondary applicants, the issue was whether they satisfied clause 187.311, which requires them to be members of the family unit of a person who holds a subclass 187 visa granted on the basis of satisfying the primary criteria.

The Tribunal reasoned that the nominating company, Vivian Wolfe Enterprise Pty Ltd, had been de-registered on 30 September 2021. Consequently, on 1 November 2021, when the Tribunal considered the review application, there was no longer an approved employer nomination in existence. This failure to meet the requirement of an approved nomination meant that clause 187.233(3) and clause 187.233 were not satisfied by the primary applicant. As the primary applicant did not meet the criteria for the subclass 187 visa, the secondary applicants, who sought to be included as family members, could not satisfy clause 187.311 because the primary applicant did not hold, nor was granted, the subclass 187 visa. Therefore, the Tribunal affirmed the decision under review.