Yang (Migration)

This matter concerned a judicial review of a decision by the Migration Review Tribunal (the Tribunal) to affirm a refusal to grant Regional Employer Nomination (Permanent) (Class RN) visas, Subclass 187, Direct Entry stream, to the applicants. The primary applicant sought a visa for the position of Contract Administrator, which was dependent on an approved nomination by her employer. The employer, the nominator, wished for the applicant's employment to continue and had appealed a previous refusal of the nomination to the Federal Circuit Court. The applicant requested the Tribunal delay its decision pending the outcome of that appeal.

The central legal issue before the Tribunal was whether there was an approved nomination for the applicant's position, as required by the Migration Regulations. The Tribunal was required to determine if it had the discretion to delay its decision-making process until the Federal Circuit Court determined the appeal concerning the nomination. The Tribunal also considered the criteria for granting a Subclass 187 visa, specifically the requirement that the applicant be a member of the family unit of a person who has been granted the visa based on satisfying primary criteria, as stipulated in clause 187.311(a).

The Tribunal reasoned that clause 187.233(3) of the Migration Regulations mandated that a nomination must be approved for a Subclass 187 visa to be granted. It found that the decision to refuse the nomination had been affirmed on review by the Tribunal, meaning there was no approved nomination before it. Consequently, the Tribunal concluded it had no discretion to delay its decision indefinitely, citing its obligation to provide a review mechanism that is fair, just, economical, informal, quick, and proportionate. The Tribunal also noted that as the primary applicant had not met the primary criteria for the visa, the second applicant, as a member of her family unit, also did not satisfy the requirements of clause 187.311(a).

The Tribunal affirmed the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.