Patel (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), under the direct entry stream. The primary dispute revolved around the approval of the nominated position, which had initially been refused by a delegate of the Department of Home Affairs. The nominator sought review of this refusal, and the Tribunal ultimately set aside the delegate's decision, substituting it with a decision to approve the nomination. A secondary issue arose concerning the inclusion of a child born after the delegate's refusal decision as a review applicant.

The Tribunal was required to determine whether the nominated position met the criteria under clause 187.233 of the Regulations, specifically whether it was the subject of an approved nomination in regional Australia, identified the applicant, and was made by the prospective employer. Furthermore, the Tribunal needed to consider how to address the inclusion of the applicant's daughter, born after the initial delegate's decision, in the visa application process, particularly in light of departmental advice.

The Tribunal reasoned that the setting aside of the nomination refusal and the subsequent approval of the nomination satisfied clause 187.233(3). Given this, the Tribunal determined that the appropriate course of action was to remit the visa application to the Minister for reconsideration of the remaining visa criteria. Regarding the daughter, the Tribunal noted advice from the Department stating she could only be included if the parents' refusal decision was remitted, allowing for a fresh decision to be made.

Consequently, the Tribunal remitted the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration. The direction was that the first named applicant met the criterion under clause 187.233(3) of Schedule 2 to the Regulations. The second named applicant's application, based on being a member of the family unit, would also be determined on remittal.