PATEL (Migration)

This matter concerned an appeal before the Tribunal regarding an Employer Nomination (Permanent) (Class EN) visa, specifically Subclass 186 (Employer Nomination Scheme). The central dispute revolved around the approval of the nominated position, which had initially been refused by the Department. The applicant sought review of this refusal.

The Tribunal was required to determine whether the relevant nomination had been approved as required by clause 186.223 of the Migration Regulations. This clause outlines several conditions for nomination approval, including that the position must be nominated in an application identifying the visa applicant as a Subclass 457 visa holder, that the nomination has been approved and not withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available, and that the visa application was made within six months of the nomination approval.

The Tribunal reasoned that the nominator's application for review of the Department's refusal had been successful, with the Tribunal setting aside the original decision and substituting an approval of the nomination on 7 June 2021. Consequently, the Tribunal found that the first named applicant met the requirements of clause 186.223(2).

The Tribunal remitted the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration. It directed that the first named applicant be considered to meet the criteria under clause 186.223 of Schedule 2 to the Regulations, and that the remaining criteria for both the first and second named applicants should be reconsidered in full.