Chen (Migration)

This matter concerned an application for a Subclass 187 (Regional Sponsored Migration Scheme) visa, Direct Entry stream, by Ms Minqi Chen, sponsored by Capsola Pty Ltd. The core dispute revolved around the refusal of Capsola Pty Ltd's nomination for the position of Accountant (General) by the Department, which subsequently led to the refusal of Ms Chen's visa application. The Administrative Appeals Tribunal (AAT) was tasked with reviewing these decisions.

The legal issues before the Tribunal were whether the sponsoring employer's nomination for the Accountant (General) position met the requirements of the *Migration Regulations 1994* (Cth), specifically r.5.19(4)(h)(ii) or r.5.19(4) as it stood prior to 1 July 2012, and whether Ms Chen satisfied clause 187.233 of the *Migration Regulations 1994* (Cth) in light of the unapproved nomination. The Tribunal also considered whether the position remained available to the applicant and if the nomination had been approved by the Minister.

The Tribunal reasoned that for a Subclass 187 visa in the Direct Entry stream, a crucial requirement is the approval of the employer's nomination. As the Department had refused to approve Capsola Pty Ltd's nomination, and this decision was affirmed by the Tribunal, Ms Chen could not satisfy the essential criteria for the visa, particularly cl.187.233(3) which mandates ministerial approval of the nomination. The Tribunal noted that the applicant had not provided evidence to demonstrate that the nomination had been approved, nor had she satisfied the requirements under r.5.19(4)(h)(ii) or its prior iteration. The fact that Capsola Pty Ltd was now in liquidation was not determinative of the nomination's approval status.

Consequently, the Tribunal affirmed the decision not to grant Ms Chen a Regional Employer Nomination (Permanent) (Class RN) visa.