Nguyen (Migration)

This matter concerned an appeal by a visa applicant regarding a Subclass 187 (Regional Sponsored Migration Scheme) visa, specifically under the Direct Entry stream for an Information and Organisation Professional. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant's nomination had been approved, a crucial step for visa eligibility. The applicant relied on evidence previously submitted to the Tribunal and the Department, as well as written submissions.

The primary legal issue before the Tribunal was whether the nomination for the position met the requirements of clause 187.233 of the Regulations. This clause mandates that the nominated position must have been approved under specific regulations, that the employer who made the nomination is the one who will employ the applicant, that the nomination has been approved and not withdrawn, and that there is no adverse information concerning the nominator or associated persons, or that such information can be disregarded. Additionally, the position must remain available to the applicant, and the visa application must have been lodged within six months of the nomination's approval.

The Tribunal found that the sponsoring employer lodged a nomination on 1 June 2017, which was subsequently refused on 3 November 2017. However, on 26 June 2018, the Tribunal set aside the Department's decision and substituted a decision approving the appointment for the position of Information and Organisation Professional. Based on this, the Tribunal was satisfied that the approved position was the same as that which was the subject of the relevant nomination application and the visa application declaration, thus meeting the requirements of cl.187.233(1). The Tribunal also found that the employer who made the nomination was the person who would employ the applicant, satisfying cl.187.233(2). Consequently, the Tribunal concluded that the visa applicant met the requirements of cl.187.233(3).

Given these findings, the Tribunal determined that the appropriate course of action was to remit the visa application to the Minister for reconsideration of the remaining criteria for the visa. The Tribunal directed that the applicant meets the criteria specified in cl.187.233 of Schedule 2 to the Regulations.