Rogers (Migration)

This matter concerned an application for review of a decision by the Department of Home Affairs to refuse an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream. The applicant sought to rely on an employer nomination lodged by Louth Civil Pty Ltd. The Tribunal was required to determine whether the nomination of the position met the relevant criteria under clause 186.223 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the employer's nomination had been approved and had not been subsequently withdrawn, as required by clause 186.223(2) and (3). The Tribunal also considered the procedural fairness obligations owed to the review applicant, specifically in relation to the Tribunal's invitation to comment on information that might lead to the affirmation of the decision under review.

The Tribunal reasoned that the Department had refused the employer's nomination, and consequently, the visa application was refused. Although Louth Civil Pty Ltd had applied for a review of the nomination refusal, this application was subsequently withdrawn. The Tribunal issued a notice under s 359A of the Migration Act 1958 inviting the review applicant to comment on the withdrawal of the nomination review, which was relevant to the requirement for an approved nomination. As no comments were provided within the prescribed period, and no extension was granted, the Tribunal determined that s 359C applied, and pursuant to s 360(3), the review applicant was not entitled to appear before the Tribunal. The Tribunal found that the invitation to comment was correctly sent and that the applicant was properly informed of the consequences of non-response. Given that the nomination had not been approved and the applicant could not rely on any other nomination, the Tribunal concluded it was futile to delay the decision.

The Tribunal affirmed the decision not to grant the applicant the Subclass 186 visa, as the requirements for the Temporary Residence Transition stream had not been met.