Nguyen (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, for a Travel Agency Manager. The applicant's employer had initially had its nomination application refused by the Department. However, the Tribunal subsequently set aside this refusal and substituted a decision approving the nomination. The core dispute revolved around whether the applicant met the criteria for the visa, specifically concerning the approved nomination.

The legal issues before the Tribunal were whether the applicant's employer had an approved nomination for the position of Travel Agency Manager that had not ceased to be in effect, and whether the applicant met the specific requirements of clause 187.233 of Schedule 2 to the Migration Regulations 1994. These requirements included that the nominated position be in regional Australia, identified the applicant, be approved and not withdrawn, that there be no adverse information concerning the nominator or associated persons, that the position remain available to the applicant, and that the visa application be made within six months of the nomination approval.

The Tribunal reasoned that, following its own decision to set aside the Department's refusal and approve the nomination, the employer now had an approved nomination that identified the applicant for the Travel Agency Manager position. The Tribunal was satisfied, based on the evidence presented, including an employment agreement, organisational chart, position description, and financial statements, that the position remained available to the applicant. Furthermore, the Tribunal confirmed that the visa application was lodged within the prescribed six-month period after the nomination was approved.

Consequently, the Tribunal remitted the application for reconsideration by the Department, with a direction that the applicant meets the criteria under clause 187.233 of Schedule 2 to the Regulations. The applications of other named applicants were to be determined by reference to the outcome of this remitted application.