Mc Givern (Migration)

The Administrative Appeals Tribunal considered the case of a visa applicant seeking a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The core dispute revolved around the refusal of the applicant's nominator sponsor's nomination application, which was a prerequisite for the visa. The Tribunal was tasked with determining whether the visa applicant met the requirements of clause 457.223(4)(a) of the Migration Regulations.

The primary legal issue before the Tribunal was whether the visa applicant had satisfied the requirement for an approved nomination, as stipulated by clause 457.223(4)(a). This clause mandates that a nomination of an occupation relating to the applicant must have been approved by a standard business sponsor and that such approval must not have ceased. The Tribunal also considered the procedural fairness obligations owed to the applicant in light of information that was proposed to be used as a reason for affirming the decision.

The Tribunal reasoned that the nominator sponsor's nomination application had been refused by the Department and this decision was affirmed by the Tribunal on 16 August 2018. Subsequently, the Tribunal invited the review applicant to provide comments on information that would form the basis of the decision to affirm the refusal, setting a deadline of 31 August 2018. As the review applicant failed to provide comments within the prescribed period and no extension was granted, section 359C of the Migration Act applied. Consequently, the Tribunal was entitled to proceed to a decision without further steps to obtain comments, and the applicant was not entitled to appear before the Tribunal, consistent with the principles in *Hasran v MIAC* [2010] FCAFC 40. The Tribunal concluded that the requirements of clause 457.223(4)(a) were not met due to the refusal of the nomination application and the lack of further claims or evidence regarding other streams of clause 457.223.

The Tribunal affirmed the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.