Li (Migration)

This matter concerned an appeal by the applicant, Li, against the refusal of a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), direct entry stream. The applicant sought to have the decision of the delegate reviewed by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 187.233 of the Migration Regulations 1994, which pertains to the nomination of a position for the direct entry stream. Specifically, the Tribunal had to determine if the position to which the visa application related was the subject of an approved nomination that had not been withdrawn, and if the applicant had made the required declaration in relation to that specific nomination.

The Tribunal reasoned that the delegate's decision record indicated that the nomination by Nick’s Corner Pty Ltd was refused on 9 May 2019, and no application for review of this refusal was made. Consequently, there was no evidence before the Tribunal of an approved nomination by that, or any other, employer. The Tribunal noted that clause 187.233 requires the position to be the one in relation to which a declaration was made in the visa application. Citing case law, the Tribunal held that a subsequent nomination, even for the same position by the same employer, would not satisfy this criterion as it would not be the nomination in relation to which the original declaration was made.

The Tribunal affirmed the decision not to grant the applicant a Subclass 187 visa, finding that the applicant did not meet the requirements of clause 187.233 due to the absence of an approved nomination in relation to which the visa application declaration was made. The Tribunal also noted that the second applicant, presumably a family member, did not satisfy the secondary criteria and there was no evidence she met the primary criteria in her own right.