LIU (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, by Mr. Liu, who was nominated by China State Farms Pty Ltd. The Department had refused the nomination, and the Administrative Appeals Tribunal (AAT) had previously affirmed that decision. Mr. Liu sought review of the visa refusal, which was predicated on the non-approval of his nomination.

The primary legal issue before the Tribunal was whether Mr. Liu met the requirements of clause 186.223 of the Migration Regulations 1994, specifically concerning the approval of a nominated position. The Tribunal was required to determine if the failure to secure an approved nomination precluded Mr. Liu from meeting the visa criteria, notwithstanding evidence of his significant contributions to regional Australia.

The Tribunal reasoned that clause 186.223 mandates the approval of a nominated position for applicants in the Temporary Residence Transition stream. It found that Mr. Liu's nomination had not been approved because China State Farms Pty Ltd had not satisfied the requirement that Mr. Liu had been employed full-time in Australia in the nominated occupation for at least two of the three years preceding the nomination application. While the Tribunal acknowledged the substantial social and economic benefits Mr. Liu and his family had brought to the Charleville community, including their valuable contribution to the cattle farming industry and the local economy, it concluded that it had no discretion to overlook the legislative requirement for an approved nomination.

Despite affirming the decision not to grant the visa, the Tribunal considered that Mr. Liu's circumstances raised issues of social and economic benefit to regional Australia and that the strict operation of the law had led to a potentially unfair result. Accordingly, the Tribunal referred the matter to the Department for consideration of a possible intervention by the Minister under section 351 of the Migration Act 1958.