Muldoon (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a decision by the Department of Home Affairs to refuse a Subclass 187 (Regional Sponsored Migration Scheme) visa, Direct Entry stream, for the applicant, Mr Thomas Muldoon, as a Solid Plasterer. The employer, Yeoro Pty Ltd, had applied for approval of the nomination for this position. The Department had refused the nomination application, and consequently, Mr Muldoon's visa application. Both Yeoro Pty Ltd and Mr Muldoon sought review of these decisions by the Tribunal.

The primary legal issue before the Tribunal was whether the nomination for the position of Solid Plasterer had been approved, as this was a prerequisite for the applicant to satisfy the criteria for the Subclass 187 visa under clause 187.233(3) of the Migration Regulations. The Tribunal also had to consider the applicant's entitlement to appear before it, given his response to a section 359A invitation.

The Tribunal reasoned that the Department had refused the nomination application because it did not satisfy subregulation 5.19(4)(h)(ii)(A) of the Regulations. Subsequently, the Tribunal affirmed the decision to refuse the nomination. The Tribunal then issued a section 359A invitation to the applicant, informing him that without an approved nomination, he could not satisfy clause 187.233(3) and that the visa refusal would likely be affirmed. The applicant was invited to respond by 27 December 2019. The applicant's response on 1 January 2020, requesting an extension of time, was made after the prescribed period, meaning section 359C applied and the applicant was not entitled to appear before the Tribunal, consistent with *Hasran v MIAC* [2010] FCAFC 40. The Tribunal proceeded to make a decision without further steps, finding that the applicant had not met the requirements for the Direct Entry stream of the Subclass 187 visa.

The Tribunal affirmed the decision not to grant Mr Muldoon's Regional Employer Nomination (Permanent) (Class RN) visa.