DU (Migration)

The applicant, DU, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the refusal of a Subclass 186 Employer Nomination Scheme visa, Direct Entry stream. The visa application was based on an approved nomination for the position of Sales and Marketing Manager.

The primary legal issue before the Federal Circuit and Family Court of Australia was whether the Tribunal erred in law by failing to consider, or adequately consider, the applicant's submission that the nominated position of Sales and Marketing Manager was a genuine position that was available for the applicant to perform. The applicant contended that the Tribunal's decision was vitiated by a failure to engage with this crucial aspect of the assessment.

Justice Mojsin found that the Tribunal had indeed failed to adequately consider the applicant's submission regarding the genuineness of the nominated position. The Tribunal's reasons for decision did not demonstrate a proper engagement with the evidence and arguments presented by the applicant concerning the availability of the position. Consequently, the Court held that the Tribunal had made an error of law.

The Court set aside the decision of the Administrative Appeals Tribunal and remitted the matter to the Tribunal for redetermination according to law.