OUYANG (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, for the applicant, Mr. Ouyang, and a secondary application for the second applicant. The dispute arose because the applicant's nominating employer, FORBES (AUST) Pty Ltd, had its application to approve the nominated position of Importer or Exporter refused by the Department. The employer then applied to the Tribunal for a review of this decision, but subsequently withdrew that review application. The Tribunal was required to determine whether the applicants met the criteria for the visa, specifically whether there was an approved nomination for the position.

The Tribunal was required to consider clause 187.233 of the Migration Regulations, which outlines the requirements for an approved nomination in the Direct Entry stream. This clause mandates that the nominated position must be located in regional Australia, be the subject of an approved nomination application, and, for nominations made on or after 1 July 2017, identify the applicant in relation to the position. Further requirements include that the nominator must be the prospective employer, the nomination must have been approved and not subsequently withdrawn, there must be no adverse information known to Immigration about the nominator or associated persons, the position must remain available, and the visa application must be made within six months of the nomination approval.

The Tribunal reasoned that FORBES (AUST) Pty Ltd's withdrawal of its review application concerning the nomination meant that there was no approved nomination. As an approved nomination is a mandatory criterion for the visa, and the applicant had not sought to satisfy the criteria for any other visa stream, clause 187.223 was not met. Consequently, the Tribunal affirmed the decision to refuse the visa to the primary applicant. The Tribunal also affirmed the refusal for the second applicant, finding that they did not meet the secondary criteria as a family unit member and had not demonstrated they could meet the primary criteria independently. The Tribunal affirmed the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.