HOANG (Migration)

This matter concerned an appeal by Mr. Hoang and his partner against the delegate's decision to refuse their Subclass 186 Employer Nomination (Permanent) (Class EN) visas. The delegate had initially refused the visas on the grounds that Mr. Hoang had provided a bogus document, thus failing to satisfy Public Interest Criterion 4020, and had not sought a waiver of this criterion. However, the primary issue before the Tribunal was the employer's nomination, which had been refused by the Department and this refusal was affirmed by the Tribunal in a related matter.

The legal issues before the Tribunal were whether Mr. Hoang met the requirements for a Subclass 186 visa in the Temporary Residence Transition stream, specifically whether the position he was nominated for was the subject of an approved nomination as required by clause 186.223 of Schedule 2 to the Regulations. The Tribunal also considered whether it was required to address the delegate's findings regarding the bogus document, given the failure to meet the nomination criteria.

The Tribunal reasoned that clause 186.223(2) of the Regulations requires that the position to which a Temporary Residence Transition stream application relates must be the subject of an approved nomination. As the employer's nomination application had been refused and this decision affirmed by the Tribunal, Mr. Hoang could not meet this essential criterion. The Tribunal noted that Mr. Hoang had been given an opportunity to comment on the implications of the affirmed nomination refusal but had failed to respond. Consequently, the Tribunal found it unnecessary to consider the delegate's original reasons for refusal concerning the bogus document, as the failure to meet the nomination requirement was determinative.

The Tribunal affirmed the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.