Li (Migration)

This matter concerned a review application before the Tribunal concerning a Subclass 186 Employer Nomination Scheme visa. The applicant was the visa applicant, and the Nominator was the employer who had applied for approval of a business nomination. The core of the dispute revolved around the status of the Nominator's application for approval of a business nomination.

The Tribunal was required to determine whether the applicant had an approved nomination or a pending nomination that was not yet approved. This involved considering whether the Nominator's application for review of the initial refusal by the Department of Home Affairs was made within the prescribed time limits. The Tribunal also had to consider the implications of the applicant failing to provide requested information and comments within the specified periods.

The Tribunal found that the Nominator's application for approval of a business nomination was refused by the Department on 12 March 2018. The Tribunal's records indicated that the Nominator had applied for a review of this refusal, but this review application was lodged out of time. Consequently, the applicant did not have an approved nomination. The Tribunal had previously advised the applicant that this lack of an approved nomination suggested the applicant did not meet the requirements of cl.186.223(2) of the Migration Regulations 1994. The applicant failed to provide the requested information or comments by the deadline of 4 July 2019, and no extension was granted.

In light of the applicant's failure to provide the required information within the prescribed period, the Tribunal applied s.359C of the Migration Act 1958 (Cth), which meant the applicant was not entitled to appear before the Tribunal under s.360(3). Following the principle in *Hasran v MIAC* [2010] FCAFC 40, the Tribunal had no power to permit the applicant to appear. Accordingly, the Tribunal proceeded to make a decision without further steps and affirmed the delegate's decision to refuse the applicant's visa.