Huang (Migration)

This matter concerned an appeal to the Tribunal regarding the refusal of Regional Employer Nomination (Permanent) (Class RN) visas, subclass 187. The applicants had been included in the visa application as the spouse and step-children of the primary applicant, Mr. Thanh Dung Co. The core dispute revolved around whether the applicants qualified as members of Mr. Co's family unit for the purposes of the visa application.

The Tribunal was required to determine if the first applicant, who was initially identified as Mr. Co's spouse, met the definition of 'spouse' under section 5F of the Migration Act 1958 (Cth). Additionally, the Tribunal had to ascertain whether the other applicants qualified as 'step-children' of Mr. Co, as defined by regulation 1.03 of the Migration Regulations 1994 (Cth), and whether they met the age and dependency requirements outlined in regulation 1.12.

The Tribunal found that the first applicant was not Mr. Co's spouse because a final divorce order had been made in Australia on 24 September 2023. Consequently, the Tribunal concluded that the first applicant did not satisfy the definition of 'spouse' as requiring a mutual commitment to a shared life and living together or not living separately and apart on a permanent basis. Given this finding regarding the spouse, and without a valid spouse, the Tribunal determined that the other applicants could not be considered step-children of Mr. Co under regulation 1.12. Furthermore, the Tribunal noted that Mr. Co himself was not the holder of a subclass 187 visa, which was an additional reason why the applicants could not satisfy the relevant clause.

The Tribunal affirmed the decision not to grant the applicants Regional Employer Nomination (Permanent) subclass 187 visas.