Shi (Migration)

This matter concerned an application for review of a decision to refuse a Subclass 187 (Regional Sponsored Migration Scheme) visa, Direct Entry stream, made by Mr Gaohui Shi. The nominating employer, Tetrastone Pty Ltd, had applied for approval of a nomination for the position of Importer or Exporter (ANZSCO 133311) on 9 January 2017. The Department refused this nomination application on 16 April 2018. Subsequently, Mr Shi's visa application was refused on the basis that his nomination had not been approved. Mr Shi applied to the Tribunal for review of the visa refusal, and Tetrastone Pty Ltd also applied for review of the nomination refusal.

The primary legal issue before the Tribunal was whether the nomination linked to Mr Shi's visa application had been approved. The Tribunal was required to determine if the requirements for the grant of a Subclass 187 visa, specifically concerning an approved nomination, had been met. This involved considering the separate review application lodged by the nominator, Tetrastone Pty Ltd, and the implications of its status.

The Tribunal reasoned that a Subclass 187 visa cannot be granted if the associated nomination is not approved. It noted that Tetrastone Pty Ltd had not lodged a valid application for review of the nomination refusal, and the Tribunal found it had no jurisdiction to determine that review application. Furthermore, it was indicated that the nominating company, Tetrastone Pty Ltd, had been deregistered. Consequently, the original decision to refuse the nomination stood, meaning there was no approved nomination for Mr Shi's visa application. The Tribunal also advised Mr Shi, under s 359A of the Migration Act 1958, that the lack of an approved nomination would likely lead to the affirmation of the decision under review, as it is a mandatory requirement for visa grant.

As the Tribunal determined that it lacked jurisdiction to review the nominator's application and that the nominator had been deregistered, the original decision refusing the nomination was affirmed. This meant that the essential requirement of an approved nomination for the Subclass 187 visa was not met. Accordingly, the Tribunal affirmed the decision not to grant Mr Gaohui Shi's Regional Employer Nomination (Permanent) (Class RN) visa.