Yang (Migration)

This matter concerned an appeal by the applicant, Mr Yang, against a decision of the Administrative Appeals Tribunal (the Tribunal) to affirm the refusal of his Subclass 187 (Regional Sponsored Migration Scheme) visa application under the Direct Entry stream. The core of the dispute revolved around whether the applicant had an approved nomination for the position he sought to be granted the visa for.

The legal issue before the Tribunal was whether the applicant satisfied the requirements for a Subclass 187 visa, specifically concerning the necessity of an approved nomination for the nominated position. The Tribunal was required to determine if the previous refusal of the nomination itself, affirmed on review, meant that the applicant could not meet the visa grant requirements.

The Tribunal reasoned that a prerequisite for a Subclass 187 visa is an approved nomination for the position, as stipulated by cl.187.233(1) of the Regulations. The Tribunal had previously informed the applicant that the delegate's decision to refuse the nomination approval had been affirmed on review. This meant there was no approved nomination in place. The Tribunal provided the applicant with an opportunity to comment on this information, explaining that if it relied on this fact, it would find that the applicant did not meet a mandatory visa requirement, leading to the affirmation of the refusal decision. Despite being granted additional time to respond, the applicant did not provide submissions that addressed this critical issue.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa, finding that the applicant had not met the requirements for the Direct Entry stream.