Li (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, for the occupation of Retail Manager. The applicant's nomination was refused by a delegate of the Department. The Trustee for the H & J Family Holdings Pty Ltd, the nominator, subsequently applied to the Tribunal for a review of this decision.

The primary legal issue before the Tribunal was whether the applicant had an approved nomination for the position associated with his visa application, as required by clause 187.233 of the Migration Regulations. This clause, as applicable, stipulated several conditions, including that the position be located in regional Australia, that the nominator be the prospective employer, that the nomination be approved and not withdrawn, that there be no adverse information known to Immigration about the nominator or associated persons, that the position remain available, and that the visa application be made within six months of the nomination's approval.

The Tribunal noted that the nominator's application for approval of the nomination was refused by a delegate of the Department on 18 December 2019. The Tribunal affirmed this decision on 14 November 2019. Subsequently, on 11 December 2019, the Tribunal wrote to the applicant, pursuant to s.359A of the Migration Act 1958 (Cth), inviting comments on the fact that the nomination application had been refused. The applicant was given until 27 December 2019 to respond, with a warning that failure to do so might result in a decision being made without further steps and the loss of entitlement to appear before the Tribunal. The applicant failed to provide a response within the prescribed period, and no extension was granted. The Tribunal applied s.359C and s.360(3) of the Act, which, in these circumstances, meant the applicant was not entitled to appear before the Tribunal. Citing Hasran v MIAC [2010] FCAFC 40, the Tribunal held that if an applicant has no entitlement to a hearing, it has no power to permit them to appear.

The Tribunal concluded that as the applicant had not satisfied the requirements for the visa in the Direct Entry stream, specifically the requirement for an approved nomination, the decision under review had to be affirmed. Accordingly, the Tribunal affirmed the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.