Shi (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, for the position of Human Resource Adviser. The applicants, Mr. Shi and his secondary applicant spouse, sought review of decisions not to grant them the visa. The Tribunal was required to determine whether the primary applicant met the criteria for the visa.

The central legal issue before the Tribunal was whether there was an approved nomination for the position of Human Resource Adviser, as required by clause 187.233 of the Migration Regulations 1994. The Tribunal noted that this was a question of fact and that it had no discretion in relation to this requirement. The Tribunal also considered the eligibility of the secondary applicant, whose application was dependent on the primary applicant meeting the criteria for the Subclass 187 visa under clause 187.311.

The Tribunal reasoned that a key requirement for the grant of a Subclass 187 visa in the Direct Entry stream is that the nomination of the position must have been approved by the Minister and not subsequently withdrawn. The Tribunal found that, based on the evidence presented, there was no approved nomination. Mr. Shi's oral evidence indicated that issues with the nomination arose due to a lack of diligence and poor advice from a former representative, which led to the Regional Certifying Body not supporting the application and the nomination being refused. The Tribunal emphasised that it was not assessing the applicant's skills or experience but solely the factual requirement of an approved nomination. As the primary applicant did not meet this criterion, the secondary applicant also failed to satisfy the requirements for her visa application.

Consequently, the Tribunal affirmed the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.