ZHANG (Migration)

This matter concerned an appeal by Mrs Wenbo Zhang and her family members against the refusal of their Subclass 186 (Employer Nomination Scheme) visas. The primary issue revolved around the approval of the employer's nomination for the position of Massage Therapist, which had initially been refused by the Department of Immigration but was subsequently set aside and approved by the Administrative Appeals Tribunal (AAT). The AAT was required to determine whether the nomination met the requirements of clause 186.223 of the Migration Regulations 1994.

The central legal question before the AAT was whether the employer's nomination for Mrs Zhang's position satisfied all the conditions stipulated in clause 186.223. This included whether the nominated position was approved and not withdrawn, whether there was any adverse information concerning the nominator or associated persons, whether the position remained available to the applicant, and whether the visa application was lodged within six months of the nomination's approval. The AAT also had to consider the applications of Mr Jinglin Zhao and Mr Jianyi Zhao, who applied as members of Mrs Zhang's family unit.

The AAT reasoned that the employer, Traditional Chinese Medicine Australia Pty Ltd, had successfully nominated Mrs Zhang for the Massage Therapist position. Following the AAT's earlier decision to set aside the Department's refusal and approve the nomination, the Tribunal found that the nomination had been approved and not withdrawn. Furthermore, the AAT was satisfied, based on the available information, that there was no adverse information known to Immigration regarding the nominator or associated persons, and that the position remained available to Mrs Zhang. Crucially, the AAT determined that Mrs Zhang's visa application, lodged on 10 February 2017, was made within the six-month timeframe after the nomination's approval.

Consequently, the AAT concluded that Mrs Wenbo Zhang met the requirements of clause 186.223. The AAT remitted the visa applications for reconsideration by the Minister, with a direction that Mrs Zhang had satisfied this specific criterion. The applications of her family members would be determined by reference to the outcome of Mrs Zhang's application upon remittal.