LI (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream. The applicant, Mr Yuhan Li, sought review of a decision to refuse his visa application. Mrs Fan Yang, a member of Mr Li's family unit, also applied for a visa by reference to his application. The primary dispute revolved around whether the nominated position met the requirements of cl.187.233 of the Migration Regulations 1994 (Cth).

The Tribunal was required to determine whether the applicant met the criteria under cl.187.233, which stipulated that the nominated position must have been the subject of an approved nomination under the relevant regulations, that the employer making the nomination was the prospective employer, that the nomination had not been withdrawn, that there was no adverse information known to the Department about the nominator or associated persons, that the position remained available, and that the visa application was made within six months of the nomination's approval.

The Tribunal reasoned that while the initial nomination by Kerry’s Traditional Chinese Massage Centre Pty Ltd for the position of Retail Manager was refused by the Department, the Administrative Appeals Tribunal (AAT) had subsequently set aside that refusal and substituted a decision to approve the nomination. The AAT was satisfied on the evidence before it that all the requirements of cl.187.233 were met, including that the nominator was the prospective employer, the nomination was approved and not withdrawn, there was no adverse information, the position was still available, and the visa application was made concurrently with the nomination approval.

Consequently, the Tribunal remitted the applications for reconsideration by the Department, with a direction that Mr Li met the criteria under cl.187.233. Mrs Fan Yang's application would be determined based on the outcome of Mr Li's remitted application.