CHEN (Migration)

The Administrative Appeals Tribunal reviewed decisions made by the Department of Immigration and Border Protection concerning an Employer Nomination (Permanent) (Class EN) visa application under the Subclass 186 Employer Nomination Scheme, Temporary Residence Stream. The primary applicant was Mr. Zhixi Chen, the nominee for the position of Motor Mechanic, and the sponsoring employer was The Trustee for Mc Court Group Pty Ltd. The Department had refused to approve the employer's nomination and subsequently refused Mr. Chen's visa application on the grounds that the nomination did not satisfy regulation 5.19(3)(f) of the Migration Regulations.

The central legal issue before the Tribunal was whether the employer's nomination for Mr. Chen's position had been approved. This was a critical requirement for the grant of a Subclass 186 visa under clause 186.223 of Schedule 2 of the Migration Regulations. The Tribunal also considered its jurisdiction in relation to secondary applicants who were offshore at the time of the review application.

The Tribunal reasoned that the Department's refusal to approve the nomination was a definitive decision that could not be overcome. Clause 186.223(2) explicitly requires that the Minister has approved the nomination. As the nomination had not been approved, Mr. Chen could not satisfy this essential criterion for the visa. Furthermore, the Tribunal determined that it lacked jurisdiction to consider the review application in relation to the secondary applicants because they were offshore, and therefore, a valid application for review had not been made under sections 338 and 347 of the Migration Act.

Consequently, the Tribunal affirmed the Department's decision not to grant Mr. Chen's Subclass 186 visa. The Tribunal also stated that it did not have jurisdiction in relation to the secondary applicants.