Patel (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Patel and other applicants seeking Regional Employer Nomination (Permanent) (Class RN) visas, specifically under the Subclass 187 Direct Entry stream for a hairdresser position. The core dispute revolved around whether the nominated position met the relevant legislative criteria, particularly concerning an approved nomination.

The Tribunal was required to determine if the position to which the visa application related was the subject of an approved nomination, as stipulated by clause 187.233 of the Migration Regulations. This clause, as applicable, mandates that the nominated position must be located in regional Australia, be the subject of an approved nomination application, and, for nominations made after 1 July 2017, identify the applicant in relation to the position. Further requirements include that the nominator must be the prospective employer, the nomination must have been approved and not withdrawn, there must be no adverse information known to Immigration about the nominator or associated persons (or such information must be disregarded), the position must remain available, and the visa application must be lodged within six months of the nomination's approval.

The Tribunal's reasoning focused on the fact that the nomination lodged by Amardeep Singh Johal was refused by a delegate on 25 January 2019. Although an application for review of this refusal was lodged, the Tribunal ultimately affirmed the delegate's decision to refuse the employer nomination on 11 March 2022. Consequently, there was no evidence before the Tribunal that the position was the subject of an approved nomination. As clause 187.233 was not met, and no claims were made regarding other visa streams, the Tribunal concluded that the primary applicant did not satisfy the criteria. This failure also meant that the secondary applicants did not meet their corresponding criteria under clause 187.311.

The Tribunal affirmed the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.