SCIEGHI (Migration)

The applicant, Scieghi, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the refusal of his Subclass 186 Employer Nomination Scheme visa application under the labour agreement stream. The visa was for a skilled meat worker position, and the applicant's employer had lodged an approved position nomination. However, a related nomination application was refused, and the applicant subsequently withdrew his application for review of that refusal. The AAT affirmed the delegate's decision to refuse the visa after the applicant failed to respond to an invitation to comment.

The primary legal issue before the court was whether the AAT had erred in law by affirming the delegate's decision to refuse the visa. This involved considering whether the AAT had properly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth), particularly concerning the requirements for a Subclass 186 visa under the labour agreement stream and the implications of the withdrawn nomination review. The court also had to consider whether the AAT had adequately addressed the applicant's submissions, or lack thereof, in response to the invitation to comment.

The court found that the AAT had not erred in law. It reasoned that the applicant's failure to provide a response to the invitation to comment meant that the AAT was entitled to proceed with the information before it. The AAT had correctly identified that the underlying nomination had been refused, and while the applicant had withdrawn his review of that refusal, the fact remained that the nomination was not approved. Consequently, the applicant could not satisfy the criteria for the visa under the labour agreement stream, which required an approved nomination. The AAT's decision to affirm the delegate's refusal was therefore open to it on the evidence and the law.