PATEL (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, for the position of Mechanical Engineering Draftsperson. The applicant provided evidence of their income and employment, including a Tax Group Certificate and details of their current salary and superannuation. The company operating the Red Rooster franchise in Wagga Wagga, where the applicant was employed as Restaurant/Retail Manager, had been registered with ASIC since 2015 and had been operating the franchise since 2011. The company operated eight franchises within a 250km radius, with the Director overseeing the business from Canberra. The applicant's duties as Retail Manager were detailed, including day-to-day management, compliance, financial responsibilities, staff management, and maintaining store standards. The Director confirmed the applicant's employment contract commenced in February 2017 with a salary of $52,000 plus superannuation. The case was heard by Warren Stooke AM.

The primary legal issues before the court were whether the applicant met the criteria for the Subclass 187 visa, specifically concerning the nominated position and the applicant's employment. This involved assessing whether the applicant's role as Restaurant/Retail Manager aligned with the requirements of the visa subclass and whether the employer's nomination was valid and met all regulatory conditions. The court also had to consider the evidence presented regarding the applicant's remuneration and the genuine need for the position within the employer's business structure.

The court reasoned that the applicant had met the relevant criteria, specifically cl.187.223 and cl.187.233 of Schedule 2 to the Regulations. The evidence presented, including the applicant's income and the detailed description of their managerial duties, supported the satisfaction of these clauses. The court found that the nominated position was genuine and that the applicant was appropriately employed in that role. Consequently, the court determined that the secondary applicant, as a member of the family unit, also met the criteria for the visa.

The Tribunal remitted the applications for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration. The direction was that the first named applicant met the criteria for a Subclass 187 visa under cl.187.223, cl.187.233, and cl.187.311 of Schedule 2 to the Regulations.