Cai (Migration)

This matter concerned an appeal by the applicants, Mr. Shaoqi Cai and others, against a decision to refuse them Employer Nomination (Permanent) (Class EN) visas, specifically under the Subclass 186 Direct Entry stream. The core of the dispute revolved around whether the employer nomination, lodged by Pointcorp Management Pty Ltd, had been validly approved, a prerequisite for the visa grant. The applicants claimed they received misleading advice from their former lawyer regarding investments in Australia and the visa process, which led to significant financial commitments and a misunderstanding of the application's status.

The Tribunal was required to determine if the applicants met the criteria under clause 186.233 of the Migration Regulations 1994, which outlines the requirements for an approved employer nomination. Specifically, the Tribunal had to consider whether the nomination was approved, if the nominator was the intended employer, if there was any adverse information concerning the nominator, if the position remained available, and if the visa application was lodged within the prescribed timeframe after nomination approval. A critical preliminary issue was whether the Tribunal had jurisdiction to hear the review, given that the employer's application for review of the initial refusal was lodged out of time.

The Tribunal found that Pointcorp Management Pty Ltd's application for review of the delegate's refusal of the employer nomination was lodged on 19 September 2018, which was beyond the mandatory 21-day period that expired on 13 September 2018. Consequently, the Tribunal lacked jurisdiction to conduct a review of the employer nomination. As the employer nomination was therefore not approved, the applicants could not satisfy the requirement under cl.186.233(3). While the Tribunal acknowledged the unfortunate circumstances of the applicants receiving misleading advice from their former lawyer and the impact of COVID-19 on Mr. Cai's ability to return to Australia, these factors did not alter the legal requirements for the visa.

The Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to the applicants.