Lin (Migration)

This matter concerned an appeal by Ms. Sunzhi Yao (the applicant) against a decision by the Department of Home Affairs to refuse her Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Temporary Residence Transition stream). The applicant was seeking to join her family unit, specifically Ms. Zhongyezi Lin, who had been nominated by Promotional Clothing Products Pty Ltd for the same visa subclass.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the Subclass 186 visa, particularly in light of the status of Ms. Lin's nomination. The Tribunal was required to determine if the nomination for Ms. Lin was approved and valid, as this was a prerequisite for the applicant's visa application. A further issue was whether the applicant was entitled to a hearing before the Tribunal, given her response to a request for information.

The Tribunal noted that Promotional Clothing Products Pty Ltd's nomination application for Ms. Lin had been refused on 24 November 2017, and the company subsequently withdrew its application for merits review of that refusal. Departmental records indicated that Ms. Lin did not have an approved nomination. The Tribunal had invited the applicant to respond to this information, which was relevant to clause 186.233 of Schedule 2 of the Regulations, requiring the nominated position to be subject to an approved nomination. As the applicant failed to provide any response or request an extension of time by the specified deadline, the Tribunal was precluded by section 363A of the Migration Act 1958 (Cth) from offering her a hearing.

Consequently, the Tribunal affirmed the Department's decision not to grant the visa. The Tribunal found that the applicant did not satisfy the primary criteria for the visa, which in turn meant she could not satisfy the secondary criteria as a member of the family unit of a person who holds a Subclass 186 visa.