PATEL (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), direct entry stream. The applicant sought review of a decision by the Department of Home Affairs to refuse their visa application, which was linked to an employer's nomination application. The Tribunal was required to determine whether the applicant had an approved nomination for a position with their employer that had not ceased.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 187.233 of Schedule 2 to the Migration Regulations 1994. This clause, in essence, mandates that the position to which the visa application relates must be the subject of an approved nomination in the Direct Entry stream, located in regional Australia, and must be the same position declared in the visa application. Further requirements included that the nominator must be the prospective employer, the nomination must have been approved and not withdrawn, there must be no adverse information known to the Department about the nominator or associated persons (or such information must be reasonable to disregard), the position must remain available to the applicant, and the visa application must have been lodged within six months of the nomination's approval.

The Tribunal found that while the employer did not have an approved nomination at the time of the Department's initial decision, the Tribunal itself had subsequently set aside the Department's refusal of the nomination application and substituted a decision approving it. Based on the evidence presented, including the employer's documentation, an employment agreement, an organisational chart, a position description, and financial statements, the Tribunal was satisfied that all the criteria under clause 187.233 had been met. The Tribunal therefore remitted the application for reconsideration by the Department, with a direction that the applicant met the specified criteria.