Vu (Migration)

This matter concerned an appeal by Mr. Vu against the refusal of his Subclass 186 Employer Nomination (Permanent) (Class EN) visa. The applicant, a web developer, had an approved nomination, but the nomination application itself was subsequently refused. Mr. Vu argued that the refusal resulted in unfair or unreasonable outcomes, highlighting his long-term employment with the nominating business, his contributions to the community, and the potential hardship to his Australian-born children if he were not granted permanent residency. He sought ministerial intervention due to strong compassionate circumstances.

The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for the Subclass 186 visa, specifically focusing on the requirement for an approved nomination. The applicant contended that the Tribunal should have limited its review to the grounds on which the initial delegate refused the nomination and that he was not afforded an opportunity to address new issues raised by the Tribunal. The Tribunal also considered whether it had discretion to overlook the requirement of an approved nomination, given the applicant's circumstances.

The Tribunal reasoned that while it understood the applicant's difficult situation and his desire to remain in Australia with his family, it was bound by the legislative requirement that a nomination must be approved for a Subclass 186 visa to be granted. The Tribunal clarified that it was open to consider different criteria than those relied upon by the initial delegate when reviewing a nomination application. As the decision relating to the nomination application had been affirmed on review, the Tribunal concluded that the applicant could not satisfy the requirements of subclause 186.223(2) of the Migration Regulations 1994, which mandates ministerial approval of the nomination. This lack of an approved nomination was a determinative reason for affirming the decision.

The Tribunal affirmed the decision not to grant the applicant and secondary applicants (as their applications were dependent on the primary applicant's visa) the Subclass 186 visas. However, the Tribunal noted that it would refer the matter to the Department, having considered the applicant's case and the ministerial guidelines relating to discretionary powers.