Nguyen (Migration)

The Administrative Appeals Tribunal (AAT) considered an application by Mr. Nguyen and other applicants for Employer Nomination (Permanent) (Class EN) visas, specifically the Subclass 186 (Employer Nomination Scheme) in the Temporary Residence Transition stream. The dispute centred on whether the applicants met the criteria for this visa subclass, particularly concerning an approved nomination for the position of Corporate General Manager.

The primary legal issue before the Tribunal was whether the applicants satisfied clause 186.223 of the Migration Regulations 1994, which pertains to the nomination of a position for the Temporary Residence Transition stream. This clause requires, among other things, that the position be the subject of an approved nomination application that identifies the visa applicant, and that the Minister has approved the nomination.

The Tribunal reasoned that the applicants had applied for the visa based on a nomination made by Dang Minh Consultant & Investment (DMC) Pty Ltd on 21 June 2017. However, the Department had refused to approve this nomination, and subsequently, the Tribunal itself decided not to approve the nomination on 17 September 2021. As clause 186.223(2) mandates that the Minister must have approved the nomination, and this approval was not obtained, the Tribunal concluded that this essential criterion was not met. Since the applicants had only sought to satisfy the Temporary Residence Transition stream requirements and had failed to meet them, the Tribunal affirmed the decision not to grant the visas.