SHAH (Migration)

This matter concerned applications for Regional Employer Nomination (Permanent) (Class RN) visas, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream, for the position of Retail Manager. The primary applicant, Mrs Rajanisha Prakash Shah, and her family members, Mr Prakash Dineshbhai Shah, Mr Pakshal Prakashkumar Shah, and Mr Kush Prakashbhai Shah, were involved. The dispute arose after the Department of Immigration and Border Protection refused the nomination and consequently the visa applications. The nominating employer, Hong Kong Village Goulburn Pty Ltd, successfully sought review of the nomination refusal by the Tribunal, which set aside the Department's decision and approved the nomination.

The Tribunal was required to determine whether the applicants met the requirements of clause 187.233(3) of Schedule 2 to the Regulations, specifically concerning the nominated position. A further crucial issue was the Tribunal's jurisdiction in relation to the third applicant, Mr Pakshal Prakashkumar Shah, who was offshore at the time of the visa and review applications. The Tribunal also needed to consider the remaining criteria for the visas for the other applicants.

The Tribunal reasoned that the first applicant, Mrs Rajanisha Prakash Shah, satisfied clause 187.233(3) as the nomination had been approved. The applications of Mr Prakash Dineshbhai Shah and Mr Kush Prakashbhai Shah would be determined by reference to the outcome of Mrs Shah's application. However, the Tribunal found it lacked jurisdiction to consider the review application in relation to the third applicant, Mr Pakshal Prakashkumar Shah, as he was not physically present in the migration zone when the review application was made, as required by sections 347(2)(a) and 347(3) of the Migration Act 1958.

Consequently, the Tribunal remitted the visa applications for reconsideration by the Minister, with a direction that the first applicant meets the criteria under clause 187.233(3). The Tribunal explicitly stated it did not have jurisdiction in relation to the third applicant.