Phang (Migration)

This matter concerned an application for review by Ms. Swee Heng Phang and her sponsoring employer, Aries Cars Pty Ltd, of decisions made by the Department of Home Affairs. The Department had refused to approve Aries Cars Pty Ltd's nomination for the position of Sales and Marketing Manager, ANZSCO 131112, and consequently refused Ms. Phang's Subclass 187 visa application. The Administrative Appeals Tribunal was required to determine whether the nomination had been approved, as this was a prerequisite for Ms. Phang to satisfy the criteria for the visa.

The primary legal issue before the Tribunal was whether the nomination by Aries Cars Pty Ltd met the requirements of clause 187.233 of the Migration Regulations 1994. Specifically, the Tribunal had to ascertain if the nomination had been approved by the Minister, as stipulated in subclause 187.233(3). The Tribunal also considered the applicant's submissions and the evidence provided, including the fact that the nomination was made on or after 1 July 2017, which required the position to be one in relation to which the applicant was identified in the nomination under subregulation 5.19(4)(a)(ii).

The Tribunal reasoned that for an applicant seeking a Subclass 187 visa under the Direct Entry stream, the relevant nomination must have been approved. Despite the applicant's request for her visa to be granted based on her family's circumstances, she failed to provide any evidence demonstrating that the nomination had been approved, nor did she satisfy the requirements of clause 187.233(3). The Tribunal noted that while it had sympathy for the applicant's situation, it was bound by the provisions of the Migration Act 1958 and the Migration Regulations. As the applicant had not met the essential criteria for the Direct Entry stream, the Tribunal affirmed the Department's decision.