Patel (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, by Mr Patel, with two other applicants seeking to satisfy secondary criteria. The dispute centred on whether the applicant met the requirements of clause 187.233 of the Migration Regulations 1994, specifically concerning the nomination of a position. The decision was made by the Tribunal.

The primary legal issue before the Tribunal was to determine whether the applicant satisfied clause 187.233, which outlines the criteria for a nominated position in the Direct Entry stream. This clause requires, among other things, that the position be the subject of an approved nomination, that the nominator be the prospective employer, that the nomination has not been withdrawn, and that the visa application is made within six months of the nomination's approval. The Tribunal also considered whether the secondary applicants met their respective criteria, contingent on the primary applicant's success.

The Tribunal reasoned that for the applicant to meet clause 187.233, there must be an approved nomination identifying the applicant. The evidence before the Tribunal indicated that Mahal Holdings Pty Ltd had lodged a nomination application identifying the applicant, but this application was refused by the Department on 26 June 2019. While a review application was lodged, the Tribunal found it lacked jurisdiction to review that decision. Consequently, the Tribunal concluded that there was no approved nomination in which the applicant was the nominee, meaning the requirements of clause 187.233 were not met. As the primary criteria were not satisfied, the Tribunal also found that the secondary applicants did not meet their criteria under clause 187.311.

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