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, made by Mr Patel. The applicant's associated nominator, MOORAT HOTEL PTY LTD, had its nomination application refused by the Department on 10 April 2018. Subsequently, the applicant's visa application was refused by the Department on the basis that the applicant did not meet the criteria under clause 187.233 of Schedule 2 to the Regulations. The decision under review was made by the Administrative Appeals Tribunal (AAT).

The AAT was required to determine whether the applicant met the criteria for the Subclass 187 visa, particularly in light of the subsequent approval of the nominator's application. The primary legal issue revolved around clause 187.233, which outlines requirements for the nominated position, including that the nomination must be approved by the Minister. The Tribunal also considered the implications of the Department's earlier refusal of the nomination and the applicant's visa application, and the subsequent approval of the nomination by the Tribunal.

The Tribunal reasoned that clause 187.233(3) requires the Minister to have approved the nomination. While the Department had initially refused the nomination, the Tribunal itself subsequently approved the nomination lodged by MOORAT HOTEL PTY LTD on 7 December 2020. Given this subsequent approval, the Tribunal was satisfied that the first named applicant met clause 187.233(3). The Tribunal noted that the Department's delegate had also considered the applicant under the Temporary Residence Transition stream and the Agreement stream, and had considered clause 187.311 regarding membership of the family unit, but found no one entitled to the visa based on family membership as the primary criteria were not met.

The Tribunal remitted the applications for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration. The Tribunal directed that the first named applicant meets clause 187.233(3) of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the visa.