Patel (Migration)

This matter concerned an appeal by a visa applicant against a decision to refuse a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream. The applicant sought to have the decision set aside and the visa granted. The Tribunal was required to determine whether the applicant met the criteria for the visa, specifically clause 187.233 of Schedule 2 to the Migration Regulations.

The primary legal issue before the Tribunal was whether the nomination for the position of Retail Manager had been approved and whether the position remained available to the applicant. The Tribunal considered clause 187.233, which outlines several requirements for the nomination, including that the position must be located in regional Australia, identified in the visa application, and that the nominator is the prospective employer. Crucially, it requires that the nomination has been approved and not subsequently withdrawn, and that the position is still available to the applicant.

The Tribunal found that the nomination for the position of Retail Manager had been approved by the Tribunal on 14 September 2020, and that this approved position was the same as that which was the subject of the relevant nomination application and the visa application declaration. It was also satisfied that the prospective employer was the nominator and that the position remained available to the applicant. Based on these findings, the Tribunal concluded that the visa applicant met the requirements of clause 187.233.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria. The Tribunal directed that the first applicant met the criteria specified in clause 187.233 of Schedule 2 to the Regulations.