Chen (Migration)

This matter concerned applications for Employer Nomination (Permanent) (Class EN) visas, specifically under the Subclass 186 (Employer Nomination Scheme) Direct Entry stream, for the position of Sales and Marketing Manager. The primary applicant was Mr Zhihua Chen, with his wife, Mrs Xingchen Zhou, and another individual, Mr Yin Yuk Chen, applying as members of his family unit. The dispute centred on whether the requirements of clause 186.233(3) of Schedule 2 to the Migration Regulations 1994 were met, particularly concerning the approval of the nominated position. The decision was made by Member Karen McNamara of the Administrative Appeals Tribunal.

The Tribunal was required to determine if the nominated position for Sales and Marketing Manager met the criteria outlined in clause 186.233(3). This clause mandates that the position must be the subject of an approved nomination in the Direct Entry stream, that the nominator must be the prospective employer, that the nomination must have been approved and not withdrawn, that there must be no adverse information known to the Department about the nominator or associated persons (or such information must be disregarded), that the position must remain available to the applicant, and that the visa application must be lodged within six months of the nomination's approval.

The Tribunal found that the nominating employer, MYFX Markets International Pty Ltd, had initially had its nomination for the Sales and Marketing Manager position refused by the Department. However, following a review by the Tribunal in a separate matter (AAT Case No. 1800414), the Department's decision was set aside, and the nomination was approved on 21 October 2020. Consequently, the Tribunal concluded that the first named applicant, Mr Zhihua Chen, satisfied clause 186.233(3).

Given this finding, the Tribunal determined that the appropriate course of action was to remit the visa applications for reconsideration by the Minister, with the specific direction that the first named applicant meets the criteria under clause 186.233(3). The applications of the second and third named applicants would be determined by reference to the outcome of Mr Zhihua Chen's application upon remittal.