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Tribunal: Member R Skaros

The AAT affirmed the decision of a delegate of the Minister for Immigration (the Department) not to grant the applicant and her family members employer nominated visas. There was no evidence the nominator was operating a business in Australia and the related nomination for approval of a position by an employer was not approved by the Department.

This matter was before the AAT a second time after the Federal Circuit Court overturned the decision because the applicant had raised a claim of fraud by her agent, and the Tribunal needed to consider whether she was either complicit in the fraud, or indifferent to it. A new member was appointed to hear the applicants’ claims and evidence anew.

The family had decided they wanted to migrate to Australia in 2013, paying a Shanghainese agency large sums of money to advise them on the best way to apply for visas here. They signed service agreements giving their agent permission to provide a wide range of immigration services, including lodging an employer nomination visa application. 

The family initially entered Australia on visitor visas and then remained here on bridging visas awaiting the outcome of their application for an employer nomination visa. Unbeknown to them, their application was refused after the Department identified false or misleading information in the application and their agent did not reply to the Department’s requests for further explanation.

The original AAT decision had affirmed the Department’s decision not to grant the visa for the following reasons:

  • the applicants failed a public interest criterion test to provide accurate information
  • the nomination for the position had not been approved.

In reconsidering the application, the Tribunal distinguished between the information given by the nominating business in the related nomination, which was false or misleading and the information given by the applicant in her visa application which was largely correct. The applicant’s personal information, qualifications and employment history were all accurate.

This meant the applicant did not provide false or misleading information and so satisfied the public interest criteria.

However, the second issue remained—the nomination was not approved, and the visa criteria had not been met.

Despite the applicant’s claim she was unaware an employer nominated visa application was lodged, there was substantial evidence she did know about it. Her family members were also refused their visas, as the primary applicant was unsuccessful.

Read the full decision