Xu (Migration) [2025] ARTA 411 (19 February 2025)

Decision and			
Reasons for Decision 
Applicants:	Ms Dan Xu
Mr Junmin Gao 
Mr Tianyao Gao 
Respondent:	Minister for Immigration and Multicultural Affairs 
Tribunal Number:	2320343
Tribunal:	Peter Emmerton
Place:	Adelaide
Date:	19 February 2025

Decision:	The Tribunal remits the applications for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa: 
•	cl.187.223 of Schedule 2 to the Regulations

Statement made on 19 February 2025 at 4:43pm

CATCHWORDS   
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Temporary Residence Transition stream – Corporate Services Manager – approved nomination – position is still available to the applicant –subject of an approved nomination – decision under review remitted     

LEGISLATION 
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 187.223

Statement of reasons

application for review
1.  	This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 28 September 2017 to refuse to grant the visa applicant a Regional Employer Nomination (Permanent) Subclass 187 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2.  	The visa applicant applied for the visa on 15 June 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).
3.  	The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream. 
4.  	In the present case the applicant is seeking the visa in the Temporary Residence Transition stream.
5.  	The delegate refused to grant the visa on the basis that the nomination was not approved.
6.  	On 31 October 2023, the Federal Circuit and Family Court of Australia issued a writ of certiorari issue quashing the decision made by the AAT on 8 April 2019.
7.  	A writ of mandamus issue was subsequently issued requiring the ART to re-hear the application for review according to law.
8.  	For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
9.  	The issue in the present case is whether the nomination has been approved.
 Nomination of a position
10.  	Clause 187.223 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the TRT stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.
11.  	In addition, this criterion also requires that:
•	the person who will employ the applicant is the person who made nomination
•	the nomination has been approved and has not been subsequently withdrawn
•	there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information
•	the position is still available to the applicant, and
•	the visa application was made no more than six months after the nomination of the position was approved.
12.  	On 15 June 2017 an application was lodged for a residence visa under the Regional Employer Nomination (Permanent) (Class RN 187) visa in favour of the visa applicant. On 10 August 2017 the application was refused.
13.  	On 19 February 2025, the Tribunal set the Department’s decision aside and substituted a decision approving the appointment for the position of Corporate Services Manager, ANZSCO 111131. Based on evidence provided in that application, the Tribunal is satisfied the approved position is the same as the one that was the subject of the relevant r.5.19(3) nomination application. The Tribunal is also satisfied the position is the same as that in the visa application declaration. Therefore cl.187.223(1) is met.
14.  	The Tribunal relies on its findings in the nomination application to find the person who will employ the applicant is the person who was the nominator in the application for approval. Therefore cl. 187.223(2) is met. In light of the Tribunal’s approval of the appointment under r.5.19(3), the Tribunal finds that the visa applicant now meets the requirements of cl.187.223(3).
15.  	The Tribunal finds there is no adverse information known to Immigration about the person who made the nomination, or a person associated with that person. The Tribunal finds that the visa applicant now meets the requirements of cl.187.223(3A).
16.  	The Tribunal is also satisfied on all the evidence before it that the relevant regional appointment has not been withdrawn and is still available to the visa applicant. Therefore cl.187.223(4) and (5) are met. The application for the visa was made on 15 June 2017, which is before the nomination was approved on 19 February 2025. As the visa application was made on a date which is no more than 6 months after the approval, cl.187.223 (6) is met.
17.  	The Tribunal therefore finds the visa applicant satisfies the requirements specified in cl.187.233. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

decision
18.  	The Tribunal remits the applications for Regional Employer Nomination (Permanent) (Class RN) visass for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:
•	cl.187.223 of Schedule 2 to the Regulations
Peter Emmerton
Member

ATTACHMENT A

187.223

(1)  The position to which the application relates is the position: 
(a)  nominated in an application for approval that:
(i)  identifies the applicant in relation to the position; and
(ii)  is made in relation to a visa in the Temporary Residence Transition stream; and
(c)  in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2)  The Minister has approved the nomination.   
(3)  The nomination has not subsequently been withdrawn. 
(3A)  Either:
(a)  there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or
(b)  it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.  
(4)  The position to which the application relates is located in regional Australia.  
(5)  The position is still available to the applicant.  
(6)   The application for the visa is made no more than 6 months after the Minister approved the nomination.