ACHARYA (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, specifically within the Temporary Residence Transition stream. The applicant, Mr. Acharya, sought review of a decision to refuse his visa application, which was predicated on the refusal of an associated employer nomination by TEJ Foods Pty Ltd. The Administrative Appeals Tribunal (AAT) was tasked with determining whether the applicant met the criteria for the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause requires, among other things, that the position to which the visa application relates must be the subject of an approved employer nomination that has not been withdrawn, and that the visa application must be made within six months of the nomination's approval. The Tribunal also considered the effect of the applicant's failure to respond to a notice issued under section 359A of the Migration Act 1958.

The Tribunal reasoned that the employer's nomination had been refused on 18 November 2019. As clause 186.223(2) mandates that the nomination must be approved, this criterion was not met. Furthermore, the Tribunal had issued a section 359A notice to the applicant, inviting comments on information that would likely lead to the affirmation of the decision, specifically the refusal of the nomination. The applicant failed to provide a response within the stipulated timeframe, and no extension was sought or granted. Consequently, the Tribunal applied section 359C of the Act, which, in these circumstances, meant the applicant was not entitled to appear before the Tribunal, and the Tribunal proceeded to make a decision without further steps to obtain comments.

The Tribunal affirmed the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, as the requirements of clause 186.223 had not been met due to the refusal of the employer's nomination and the applicant's failure to respond to the section 359A notice.