Li (Migration)

This matter concerned an appeal by a visa applicant, identified as Li, and their spouse, against the refusal to grant them Regional Employer Nomination (Permanent) (Class RN) visas, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream. The primary dispute revolved around whether the nominated position for a Cook met the necessary criteria for the visa grant, specifically concerning the approval of the employer's nomination. The decision was made by Stavros Georgiadis, a Member of the Tribunal.

The central legal issue before the Tribunal was whether the visa applicants satisfied all the criteria for the grant of the Subclass 187 visa, with a particular focus on clause 187.233, which pertains to the nomination of a position. This included determining whether the nominated position was the subject of an approved nomination, whether the employer who made the nomination was the intended employer, and whether the nomination had been approved and not subsequently withdrawn. The Tribunal also had to consider whether there was any adverse information known to Immigration concerning the nominator or associated persons, and whether the visa application was made within the prescribed timeframe after the nomination approval.

The Tribunal reasoned that a critical requirement for the visa grant under clause 187.233(3) was that the Minister must have approved the nomination. The Tribunal informed the applicant that the nomination had been refused on 24 June 2019, and that this refusal meant the applicant would not meet the necessary criteria for the visa. The applicant acknowledged awareness of the refused nomination decision and accepted that there was no approved nomination for the position. Consequently, the Tribunal concluded that the primary visa applicant did not meet the criteria for the grant of the visa.

As a result of the primary applicant failing to meet the criteria for the Subclass 187 visa, the Tribunal found that the second applicant, the spouse, could not be considered a member of the family unit of a person who holds the visa granted on the basis of satisfying the primary criteria. Therefore, the spouse also did not meet the requirements under clause 187.311 for the grant of the visa as part of a combined application. The Tribunal affirmed the decision not to grant the Regional Employer Nomination (Permanent) (Class RN) visas to the applicants.