Duong, Minh Nhan (Migration)

This matter concerned an application for approval of a nomination of a position, brought before the Administrative Appeals Tribunal by Minh Nhan Duong. The core dispute revolved around whether the applicant met the criteria for the approval of the nomination, following a refusal by the Department.

The Tribunal was required to determine if the nominated position was genuine, a requirement stipulated by regulation 2.72(10)(f) of the Migration Regulations 1994. This involved a qualitative assessment of the position and its alignment with the nominated occupation, as guided by principles established in cases such as *Cargo First Pty Ltd v MIBP* [2016] FCA 30. The Tribunal also considered whether to adjourn the review to allow the applicant to provide further information, referencing relevant case law on the Tribunal's discretion in such matters, including *Huo v Minister for Immigration and Multicultural Affairs*, *Manna v Minister for Immigration and Citizenship*, *Minister for Immigration and Citizenship v Li*, *Minister for Immigration and Border Protection v Singh*, and *Kaur v Minister for Immigration and Border Protection*.

The Tribunal's reasoning focused on the applicant's failure to provide requested information demonstrating compliance with the criteria in r.5.19(4) of the Regulations. Despite an invitation from the Tribunal to submit additional details by 2 July 2021, no response was received. In light of this lack of information, and considering the case law regarding the Tribunal's obligation not to indefinitely defer decisions, the Tribunal proceeded to make a decision based on the evidence before it. The Tribunal concluded that it was not satisfied that the applicant met the applicable criteria for the nomination to be approved.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination.