Chen (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream, for the position of Retail Manager. The applicant, Ms Yanan Chen, had her visa application refused following the refusal of a nomination application by the prospective employer, LZM Group Pty Ltd. Ms Lin Sun, a second applicant, applied as a member of Ms Chen's family unit. The Administrative Appeals Tribunal (AAT) was required to review the decision.

The primary legal issue before the Tribunal was whether the applicant, Ms Chen, met the requirements of cl.187.233(3) of Schedule 2 to the Migration Regulations 1994. This clause pertains to the nomination of a position and requires, among other things, that the nominated position be located in regional Australia, that the nominating employer is the prospective employer, that the nomination has been approved and not withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons, that the position remains available, and that the visa application was made within six months of the nomination approval.

The Tribunal found that the applicant satisfied cl.187.233(3). This was because, although the Department of Immigration and Border Protection had initially refused the nomination, the Tribunal, in a prior review (AAT Case No.1800912), had set aside that decision and substituted a new decision to approve the nomination under r.5.19 of the Regulations. Consequently, the Tribunal determined that the appropriate course was to remit Ms Chen's visa application to the Minister for reconsideration of the remaining criteria. The application by Ms Sun would be determined by reference to the outcome of Ms Chen's application.