Patel (Migration)

This matter concerned an appeal by Mr. Patel against a decision regarding his Subclass 187 Regional Sponsored Migration Scheme visa application, specifically under the Temporary Residence Transition stream. The core of the dispute revolved around whether the nominated position of Customer Service Manager, located in Osborne Park, Western Australia, was situated in "regional Australia" at the time of the decision. While the nomination had been approved upon review, the applicant's eligibility for the visa hinged on the location of the employment.

The primary legal issue before the court was to determine the correct definition of "regional Australia" applicable to Mr. Patel's visa application, given amendments to the Migration Regulations that occurred after his application was lodged but before the decision was made. Specifically, the court had to ascertain whether the amended definition of "regional Australia" in clause 187.111 of Schedule 2 to the Regulations, which referenced subregulation 5.19(16), applied, or if the previous definition referencing subregulation 5.19(7) remained relevant. This involved interpreting the transitional provisions within Schedule 13 of the Regulations concerning the application of the amending legislation.

The court reasoned that despite the application predating the commencement of the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018, the amendments to clause 187.111 applied to the visa application. This was because the specific amendment to clause 187.111, which replaced the reference to subregulation 5.19(7) with a reference to subregulation 5.19(16), was not subject to the transitional exclusion in item 6705 of Schedule 13. Consequently, the definition of "regional Australia" was to be found in subregulation 5.19(16). The court noted that Legislative Instrument IMMI 17/059, which defined regional areas under the previous subregulation 5.19(7), was not made pursuant to subregulation 5.19(16). Therefore, IMMI 17/059 did not apply to the definition of regional Australia for the purpose of Mr. Patel's visa application. The court concluded that Osborne Park, with postcode 6017, was within metropolitan Perth and not "regional Australia" under the applicable definition. The decision under review was remitted.