Shen (Migration)

This matter concerned an appeal by the applicant, Mr Shen, against a decision to refuse him a Regional Employer Nomination (Permanent) (Class RN) visa, subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream. The applicant's employer, HHOM Pty Ltd, had initially lodged an approved nomination for Mr Shen as a Retail Manager. However, this nomination was subsequently withdrawn by the employer. Mr Shen then established his own business and lodged a new nomination application, which was pending at the time of the hearing.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the subclass 187 visa, specifically concerning the requirement for an approved and un-withdrawn nomination. The Tribunal was required to consider clause 187.233 of the Migration Regulations, which outlines the conditions for a valid nomination, including that the nominated position must be the subject of an approved nomination that has not been subsequently withdrawn.

The Tribunal noted that the applicant conceded that there was no current approved nomination by HHOM Pty Ltd. The applicant explained that the withdrawal of the nomination by his former employer followed a dispute regarding his wages and alleged threats made by the employer. While the applicant provided evidence of communications with his former employer and the Fair Work Commission, and stated he had started his own business and lodged a new nomination, the Tribunal found that the original nomination had been withdrawn. As the regulations required an approved nomination that had not been withdrawn, and the applicant could not satisfy this criterion with the original nomination, the Tribunal affirmed the decision to refuse the visa. The Tribunal also affirmed the refusal of the visa for the second applicant, who was seeking to be a member of the family unit, as she did not meet the secondary criteria and had not demonstrated she could meet the primary criteria in her own right.