Luo (Migration)

The Administrative Appeals Tribunal considered the case of Ms Luo, who sought review of a decision to refuse her application for a Regional Employer Nomination (Permanent) (Class RN) visa, subclass 187, under the Direct Entry stream. The core of the dispute concerned whether Ms Luo's nominated position was the subject of an approved nomination at the time of the visa application.

The primary legal issue before the Tribunal was whether Ms Luo met the requirements of clause 187.233, which mandates that the position to which the visa application relates must be the subject of an approved nomination in the Direct Entry stream, located in regional Australia. This clause further requires that the nominator be the prospective employer, the nomination must have been approved, and crucially, must not have been subsequently withdrawn.

The Tribunal noted that the applicant conceded at the hearing that the nomination had been withdrawn by the nominator. The Tribunal had provided Ms Luo with particulars of information, including access to the Department's online systems which indicated no approved nomination was in place, and invited her to respond. After being granted additional time to consider this information, Ms Luo again conceded that there was no approved nomination. The Tribunal applied the principle that an approved nomination is a mandatory criterion for the grant of this visa subclass.

Consequently, the Tribunal affirmed the decision to refuse to grant Ms Luo a Regional Employer Nomination (Permanent) (Class RN) visa, subclass 187, as she failed to meet the essential requirement of having an approved nomination. The Tribunal also affirmed the refusal for the secondary applicants as they did not meet the criteria to be family members of a subclass 187 visa holder and could not meet the primary criteria themselves.