RUAN (Migration)

This matter concerned an application for review by Ms Ruan regarding a decision to refuse to grant her a Subclass 186 Employer Nomination Scheme visa. The dispute centred on whether Ms Ruan met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994 (Cth), which pertains to the approval of a nominated position. The decision was made by Kate Timbs, a Member of the Tribunal.

The primary legal issue before the Tribunal was to determine if Ms Ruan satisfied the criteria under clause 186.223. This clause requires, among other things, that the nominated position is the subject of an approved nomination, that the applicant was identified in the nomination, that the nomination has not been withdrawn, that there is no adverse information known to the Department, that the position remains available to the applicant, and that the visa application was made within six months of the nomination's approval.

The Tribunal reasoned that while the initial delegate refused to approve the nomination, a previous Tribunal decision had set aside that refusal and approved the nomination. Consequently, Ms Ruan satisfied the criterion that the nomination had been approved. The Tribunal was satisfied that the nomination had not been withdrawn, no adverse information was known to migration authorities, the position remained available to Ms Ruan, and she had applied for the visa before the nomination was approved. Based on these findings, the Tribunal concluded that Ms Ruan met the criteria in clause 186.223.

The Tribunal remitted the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration with the direction that Ms Ruan meets the criteria for a Subclass 186 visa in clause 186.223. The decision also noted that Mr Li would be considered for his eligibility for a visa if Ms Ruan's visa was granted on this basis.