Simple (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Temporary Business Entry (Class UC) – Subclass 457 visa. The applicant's initial visa application was refused by the Department of Home Affairs because her prospective employer, Geetz Pty Ltd, did not have an approved nomination in place. Subsequently, a new potential sponsor, KG Enterprises (Aust) Pty Ltd, applied to nominate the applicant for the occupation of Cook, but this nomination application was also refused by the Department. The applicant sought merits review of the visa refusal, and the Tribunal decided to consider the nomination application first.

The primary legal issue before the Tribunal was whether the applicant satisfied the requirements for a Subclass 457 visa, specifically clause 457.223(4)(a) of the Regulations, which mandates an approved nomination by a standard business sponsor that has not ceased. The Tribunal also had to determine the procedural fairness owed to the applicant in light of new information.

The Tribunal reasoned that the applicant had not met the primary criteria for the visa. It noted that the nomination application by KG Enterprises (Aust) Pty Ltd had been refused on 19 August 2019. The Tribunal then notified the applicant on 27 August 2019, under section 359A of the Act, of this refusal and other relevant information, including that she was not the subject of an approved or pending nomination. The applicant was invited to provide comments or a response by 10 September 2019, with the option to request an extension. As the applicant failed to provide any submissions or request an extension within the prescribed period, the Tribunal concluded that she had lost the right to a hearing, pursuant to section 363A of the Act. Consequently, the Tribunal affirmed the decision not to grant the visa.