Benedicto (Migration)

This matter concerned an application for review of a decision by the Administrative Appeals Tribunal (the Tribunal) to affirm the refusal of an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream, for Mr Carlo Angelo Ayuco Benedicto. The applicant sought review of the Tribunal's decision to affirm the refusal of his visa application.

The primary legal issue before the Tribunal was whether Mr Benedicto met the requirements of cl.186.223 of Schedule 2 to the Migration Regulations 1994. Specifically, the Tribunal had to determine if the nominated position was the subject of an approved nomination, as required by cl.186.223(2). A further issue arose regarding the Tribunal's jurisdiction over secondary applicants, as their inclusion in the review application was made outside the prescribed time limits.

The Tribunal reasoned that cl.186.223(2) mandates that a nomination must have been approved for the visa application to be successful. In this case, the nomination made by Miranda Family Holdings Pty Ltd had been refused, and the subsequent application for review of that refusal by the nominator was dismissed by the Tribunal. Consequently, the requirement for an approved nomination was not met. The Tribunal also noted that Mr Benedicto was invited to comment on this adverse information but failed to provide a response within the stipulated period, leading to the application of s.359C of the Migration Act 1958 and the Tribunal proceeding to a decision without further steps. The Tribunal also found it had no jurisdiction to consider the secondary applicants as their request to be included was made out of time.

The Tribunal affirmed the decision not to grant Mr Benedicto an Employer Nomination (Permanent) (Class EN) visa.