Sheng (Migration)

This matter concerned applications for Employer Nomination (Permanent) (Class EN) visas, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream, made by Mr Jinlin Sheng, Mrs Lifang Chen, and Miss Min Sheng. The Administrative Appeals Tribunal (AAT), constituted by Warren Stooke AM, was required to review decisions to refuse to grant these visas.

The primary legal issues before the Tribunal were whether the first applicant, Mr Sheng, was the subject of an approved nomination for a Metal Fabricator position, and consequently, whether the second and third applicants, as members of his family unit, met the criteria for the visa. Specifically, the Tribunal had to determine if the nomination for the position had been approved and if the applicants satisfied the requirements of clause 186.223 of the Migration Regulations 1994.

The Tribunal's reasoning centred on the fact that the application for approval of the nominated position made by the nominator, THE TRUSTEE FOR G PHILLIPS FAMILY TRUST, had been refused by a delegate of the Minister for Immigration. As the nominator had not sought review of this decision, the nomination was not approved. This failure to secure an approved nomination meant that Mr Sheng could not satisfy clause 186.223(2), a prerequisite for the grant of the visa. Consequently, the secondary applicants, Mrs Chen and Miss Sheng, could not satisfy clause 186.311, as they were not members of the family unit of a person who held a Subclass 186 visa granted on the basis of satisfying the primary criteria.

The Tribunal affirmed the decisions not to grant the Employer Nomination (Permanent) (Class EN) visas to the applicants.