Patel (Migration)

The Administrative Appeals Tribunal considered an application by Mr. Patel for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Direct Entry stream. The core of the dispute revolved around whether the applicant met the requirements for this visa subclass, particularly concerning the nomination of the position by the sponsoring employer.

The Tribunal was required to determine if the applicant satisfied the criteria set out in clause 186.233 of Schedule 2 to the Migration Regulations 1994. This clause mandates, among other things, that the nominated position must have been approved by the Minister, that the nominating business must be the prospective employer, and that the nomination must not have been withdrawn. Crucially, the Tribunal also had to consider whether the nominating business, HT Softwares Pty Ltd, was a valid entity at the time of the nomination and visa application.

The Tribunal's reasoning focused on the deregistration of the nominating business, HT Softwares Pty Ltd, on 25 March 2021. As the Tribunal had previously found it lacked jurisdiction to review the nomination review application due to this deregistration, it concluded that there was no approved nomination associated with Mr. Patel's subclass 186 visa application. This failure to meet the requirement of an approved nomination under cl.186.233(3) was determinative. The applicant was invited to comment on this information but did not respond, nor did they attend a scheduled hearing.

Consequently, the Tribunal affirmed the original decision not to grant the visa. The applicant had not satisfied the essential criteria for the Subclass 186 visa in the Direct Entry stream, primarily due to the invalidity of the nomination by a deregistered company.