Quach (Migration)

This matter concerned an application for a Subclass 187 (Regional Sponsored Migration Scheme) visa, Direct Entry stream, by an applicant who was the subject of an approved nomination. The dispute arose because the applicant, in their visa application, mistakenly provided the Transaction Reference Number (TRN) of a previously refused nomination application, rather than the TRN of a subsequent, still undecided nomination application lodged by the same nominator. The case was heard by Mark Bishop, acting as a member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had satisfied the criteria for the visa, specifically concerning the linking of the visa application to an approved nomination. This involved determining whether the incorrect TRN provided in the visa application constituted a fatal flaw or if the applicant's clear intention to link the visa to the second, valid nomination application could be recognised, despite the clerical error. The Tribunal also had to consider the requirements of clause 187.233 of Schedule 2 to the Regulations, which outlines the conditions for an approved nomination and its association with the visa application.

The Tribunal reasoned that the applicant had made an innocent mistake by entering the incorrect TRN, evidenced by the timing of the applications and the subsequent submission of a Notification of Incorrect Answers form. It was clear from the applicant's response to the Department's natural justice letter that the intention was to link the visa application to the second nomination application, which was lodged after the first had been refused and was still pending. The Tribunal found that the applicant had demonstrated that the nominator was the intended employer and that the position was still available.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration. The direction was that the applicant met the criteria under cl.187.233 and cl.187.311 of Schedule 2 to the Regulations, allowing for further assessment of the remaining visa requirements.