QU (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of QU (Migration), concerning Ms Yanhua Qu, the nominee for a Financial Investment Adviser position, and her sponsoring employer, The Trustee for the Shaliko Family Trust. The dispute centred on the refusal of Ms Qu's Subclass 187 (Regional Sponsored Migration Scheme) visa application, which was predicated on the employer's nomination not being approved by the Department. Both the employer and Ms Qu sought review of these decisions by the Tribunal.

The primary legal issue before the Tribunal was whether the employer's nomination for the Financial Investment Adviser position satisfied the requirements of the Migration Regulations, specifically clause 187.233 for the Direct Entry stream. This required the Tribunal to determine if the nomination had been approved and if all associated criteria, including the applicant being identified in the nomination and the visa application being made within six months of nomination approval, were met. The Tribunal also had to consider whether the applicant could satisfy the visa criteria without evidence of an approved nomination.

The Tribunal reasoned that for a Subclass 187 visa in the Direct Entry stream, the applicant must demonstrate that the nominated position has been approved under the relevant regulations and that the visa application was made within the prescribed timeframe after nomination approval. In this instance, the Department had refused the nomination on the basis that it did not satisfy subregulation 5.19(4)(d)(i) of the Regulations. The Tribunal had previously affirmed the decision to refuse the nomination. Consequently, without an approved nomination, Ms Qu could not satisfy clause 187.233(3) of the Migration Regulations, which requires the Minister to have approved the nomination.

As the requirements for the Direct Entry stream of the Subclass 187 visa had not been met due to the lack of an approved nomination, the Tribunal affirmed the decision under review. The Tribunal therefore made an order affirming the decision not to grant Ms Qu's Regional Employer Nomination (Permanent) (Class RN) visa.