Truong (Migration)

This matter concerned an application for review of a decision to refuse a Subclass 457 (Temporary Work (Skilled)) visa. The applicant, Mr. Truong, had been nominated for the occupation of vegetable grower by Van Dien Le trading as Le Van Dien Family Trust. The core dispute revolved around whether the applicant met the eligibility requirements for the visa, particularly concerning the validity of the nomination and the applicant's own qualifications and employment background.

The Tribunal was required to determine two primary legal issues. Firstly, it needed to ascertain whether the nomination for the applicant remained in effect, considering the transitional arrangements introduced by the Migration Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018. Secondly, the Tribunal had to assess whether the applicant possessed the necessary skills, qualifications, and employment background to perform the nominated occupation of vegetable grower, as stipulated by clauses 457.223(4)(da) and 457.223(4)(e) of the Migration Regulations.

In its reasoning, the Tribunal accepted the applicant's submission that the nomination remained valid due to transitional provisions under clause 6704(15) of Schedule 13. This provision preserved nominations made before 18 March 2018 if the visa applicant applied before that date and sought review within 12 months of nomination approval, preventing the cessation of the nomination under regulation 2.75(2)(b). Furthermore, after considering departmental policy, documentary evidence, and the applicant's oral evidence regarding his qualifications and extensive work experience in Australia, the Tribunal was satisfied that the applicant met the requirements of clause 457.223(4)(da) and, where applicable, clause 457.223(4)(e).

Consequently, the Tribunal remitted the applications for reconsideration with a direction that the first applicant met the criteria for a Subclass 457 visa, specifically in relation to clause 457.223(4)(e).