Vu (Migration)

The Administrative Appeals Tribunal considered the case of Mr Vu, who sought review of a decision concerning his application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream, for the occupation of Retail Manager (General). The core of the dispute revolved around whether the applicant met the requirements of clause 187.233(3) of the Migration Regulations 1994, specifically concerning the approval and validity of the nomination for the position.

The Tribunal was required to determine whether the applicant satisfied the criteria for an approved nomination, which included that the nominated position be located in regional Australia, identified the applicant, and that the nominator was the prospective employer. Further, the nomination must have been approved and not subsequently withdrawn, with no adverse information known to the Department about the nominator or associated persons, and the visa application lodged within six months of the nomination approval. The Tribunal also had to consider the applicant's request for an adjournment of the hearing and whether the refusal of an indefinite adjournment constituted a denial of procedural fairness.

The Tribunal reasoned that the critical issue was not the reasons for the refusal of the nomination application by the Department, but rather whether an approved nomination existed at the time of the visa application. The evidence indicated that the nomination application was refused by the Department on 28 March 2018. The Tribunal noted that the applicant's submissions regarding the fairness of the nomination refusal process and the lack of opportunity to provide updated financial information were not relevant to the question of whether an approved nomination was in place. The Tribunal also found that while amenable to further submissions on adjournment, it was not required to grant an indefinite adjournment, particularly when the applicant had been granted an extension of time and the core issue of an approved nomination was clear.

The Tribunal concluded that the decision under review should be affirmed, as the applicant had not demonstrated that the requirements of clause 187.233(3) were met, specifically the existence of an approved nomination.