CHEN (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of decisions made by the Department of Immigration and Border Protection. The applicant, Ms Biyun Chen, sought a Subclass 187 Regional Sponsored Migration Scheme visa, with her sponsoring employer, Lsaso Pty Ltd, applying for approval of a nomination for the position of Contract Administrator. The Department had refused the nomination approval, and consequently, refused Ms Chen's visa application, on the basis that the nomination did not satisfy specific regulatory requirements.

The primary legal issue before the Tribunal was whether the nomination made by Lsaso Pty Ltd for the position of Contract Administrator had been approved. This approval was a prerequisite for Ms Chen to satisfy the criteria for a Subclass 187 visa under the Direct Entry stream, specifically clause 187.233 of the Migration Regulations. The Tribunal was required to determine if the evidence presented, or that which could have been presented by the applicant, demonstrated that the nomination had met the relevant regulatory requirements.

The Tribunal's reasoning centred on the fact that the nomination had not been approved by the Department. Following the Department's refusal, the Tribunal had notified Ms Chen under section 359A of the Migration Act 1958 (Cth) that it intended to affirm the Department's decision, advising that without evidence of nomination approval, she could not satisfy clause 187.233(3). Ms Chen was invited to respond by a specified date, but failed to do so. Consequently, the Tribunal applied section 359C and 360(3) of the Act, proceeding to make a decision without further steps, as it was evident that the necessary information could not be provided.

The Tribunal affirmed the decision not to grant Ms Chen's Regional Employer Nomination (Permanent) visa. This outcome was based on the finding that the essential requirement of an approved nomination, as stipulated by clause 187.233 of the Migration Regulations, had not been met.