YAN (Migration)

This matter concerned an appeal by Mrs Yan, her husband Mr Lang, and their son Mr Lang, against the Department's decision to refuse their applications for Employer Nomination (Permanent) (Class EN) visas, specifically under the Subclass 186 Temporary Residence Transition stream. The primary dispute revolved around whether the nominated position for Mrs Yan met the regulatory requirements for the visa.

The Tribunal was required to determine whether Mrs Yan met the criteria for a Subclass 186 visa in the Temporary Residence Transition stream, particularly clause 186.223 of Schedule 2 to the Migration Regulations 1994. This involved assessing whether the nominated position had been approved by the Minister and had not been subsequently withdrawn, whether there was any adverse information concerning the nominator, and if the position remained available to the applicant within the prescribed timeframe. The Tribunal also had to consider the applications of Mr Lang and Mr Zhe Lang, which were dependent on Mrs Yan meeting the primary criteria.

The Tribunal affirmed the decision under review, concluding that Mrs Yan did not meet the requirements of clause 186.223(2) because the nomination application for the position in question had been refused by the Department and this refusal was affirmed by the Tribunal. Mrs Yan had failed to provide any response or comment to the information presented in the Tribunal's section 359A letter regarding this refusal. As the nomination had not been approved, the Tribunal found that Mrs Yan did not satisfy the criteria for the visa. Consequently, as the primary applicant had failed to meet the criteria, her husband and son, whose applications were based on their membership in her family unit, also did not meet the requirements for the visa.