PATOLIYA (Migration)

This matter concerned an appeal by Mr. Patoliya against a decision to affirm the refusal of his Employer Nomination (Permanent) Subclass 186 visa application, specifically under the Temporary Residence Transition stream. The core of the dispute revolved around the validity of the nominated position, which was for a Customer Service Manager. The employer's nomination review application had been withdrawn, and the applicant sought ministerial intervention, citing exceptional circumstances related to being a vulnerable worker and having been underpaid by his employer, 7-Eleven, leading to proceedings before Fair Work Australia. The decision was made by Katie Malyon.

The legal issues before the Tribunal were whether the Minister, acting through the Department or the Tribunal, had approved the relevant nomination for the purposes of clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause outlines several requirements for a valid nomination in the Temporary Residence Transition stream, including that the nominated position must have been the subject of an approved nomination application, that the employer who made the nomination must be the one employing the visa applicant, that the nomination must not have been subsequently withdrawn, and that there must be no adverse information known to the Department about the nominator or associated persons, or such information must be reasonable to disregard.

The Tribunal reasoned that a prerequisite for a Subclass 186 visa under the Temporary Residence Transition stream is that the employer's nomination must have been approved and not subsequently withdrawn. In this case, the employer's application for approval of the nominated position was initially refused by the Department. Subsequently, the employer formally withdrew its review application for this nomination on 14 July 2017. The Tribunal notified Mr. Patoliya and his wife of this development, explaining that the withdrawal of the nomination review application was relevant because an approved nomination is a requirement for their visa application. The Tribunal indicated that if it relied on this information, it might affirm the decision to refuse their visa application, and invited them to comment.

The Tribunal concluded that the decision under review should be affirmed. This outcome was based on the finding that the employer's nomination review application had been withdrawn, which meant the requirement for an approved nomination under clause 186.223 of Schedule 2 to the Regulations had not been met.