HAN (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for review of a decision to refuse a Subclass 186 (Employer Nomination Scheme) visa, Direct Entry stream. The applicant sought to have the refusal decision substituted with an outcome that the visa application be withdrawn, to avoid prejudicing their ability to lodge an onshore application for a Subclass 482 visa. The applicant also contended that they were denied natural justice and suffered prejudice due to a procedural irregularity.

The primary legal issue before the Tribunal was whether the applicant had been denied procedural fairness, specifically the opportunity to withdraw their visa application within the prescribed timeframe after being notified of the nomination refusal. The applicant argued that the visa refusal decision was made prematurely, on the last day of the legislative timeframe for a response, thereby preventing them from exercising their right to withdraw the application and apply for an alternative visa onshore.

The Tribunal affirmed the decision not to grant the visa. While acknowledging the applicant's awareness of the option to withdraw and their engagement with legal advice regarding this possibility, the Tribunal found that the applicant had not been denied natural justice. The applicant had been provided with a natural justice letter on 5 March 2018, giving them 28 days to respond, which concluded on 2 April 2018. The applicant was notified of the visa refusal on 3 April 2018. The Tribunal also noted that secondary applicants could not meet the criteria for the visa grant as there was no evidence they were members of the family unit of a person who satisfied the primary criteria.