Fang (Migration)

This matter concerned an application for review of a decision to refuse a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, for the position of Wholesaler. The applicant sought Ministerial Intervention, citing compelling and compassionate circumstances related to their family's long-term presence in Australia and their pastoral service to a church. The decision under review was made by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 187.233(3) of the Migration Regulations 1994, which requires that the Minister has approved the nomination for the position. This clause, as applicable, necessitates that the nominated position be located in regional Australia, identified in relation to the applicant, and that the nomination has been approved and not withdrawn. Further requirements include that the employer making the nomination is the one employing the applicant, that there is no adverse information known to Immigration, that the position remains available, and that the visa application was made within six months of the nomination approval.

The Tribunal affirmed the decision to refuse the nomination. The applicant had acknowledged that an approved nomination was essential for their visa application but requested Ministerial Intervention, detailing their family's circumstances since arriving in Australia in 2014. The Tribunal noted that the nominator would not appeal the nomination refusal and the applicant lacked the resources to appeal the visa refusal review. Crucially, the Tribunal had invited the applicant to provide comments on the employer nomination refusal under s 359A of the Migration Act 1958, with a deadline of 27 July 2022. The applicant failed to provide the requested information within this period, and did not seek an extension. Consequently, s 359C of the Act applied, meaning the applicant was not entitled to appear before the Tribunal, as confirmed by Hasran v MIAC [2010] FCAFC 40. The applicant's agent submitted a response on 28 July 2022, which was outside the prescribed time. A subsequent request to reinstate a hearing, scheduled for 4 August 2022, was denied as the Tribunal lacked the power to do so. The Tribunal's decision was based on the failure to meet the essential requirement of an approved nomination, compounded by the procedural failure to respond within the stipulated timeframe.