Nguyen (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a decision to refuse a Subclass 186 Employer Nomination (Permanent) visa. The visa applicant sought to have their nomination for a Management Accountant position approved.

The primary legal issue before the Tribunal was whether the nominated position met the requirements of clause 186.233 of the Migration Regulations 1994. This clause outlines several conditions that must be satisfied for a nomination to be approved, including that the position must be the subject of an approved nomination application, the nominator must be the prospective employer, the nomination must not have been withdrawn, there must be no adverse information concerning the nominator, the position must remain available, and the visa application must have been lodged within six months of the nomination's approval.

The Tribunal found that the nominated position satisfied clause 186.233. It relied on its previous findings in the nomination application to conclude that the position was the same as that declared in the visa application and that the nominator was the prospective employer. The Tribunal also determined that the nomination had not been withdrawn, was still available, and that the visa application was lodged within the prescribed timeframe after the nomination's approval. Consequently, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria. The Tribunal also referred the case of a secondary applicant to the Department for fresh consideration, as the primary applicant did not hold a Subclass 186 visa at the time of the Tribunal's decision.