Singh (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Employer Nomination Scheme, Temporary Residence Transition stream. The applicant sought review of a decision to refuse their nomination, which was lodged by Anne Bee Holdings Pty Ltd. The Administrative Appeals Tribunal, constituted by Member Ian Berry, was required to determine whether the applicant met the criteria under clause 186.223 of the relevant regulations.

The primary legal issue before the Tribunal was whether the applicant had an approved nomination that satisfied all the requirements of clause 186.223. This clause mandates, among other things, that the nomination must have been approved and not subsequently withdrawn, that there be no adverse information known to Immigration about the nominator or associated persons, that the nominated position remains available to the applicant, and that the visa application was made within six months of the nomination's approval. The Tribunal also considered the procedural implications of the applicant's failure to respond to a notice issued under section 359A of the Migration Act 1958 (Cth).

The Tribunal reasoned that the applicant had failed to meet the requirements of clause 186.223. This failure stemmed from the Department's refusal to approve the nomination, and the applicant's subsequent failure to provide comments or information in response to a section 359A notice issued by the Tribunal regarding adverse information. As the applicant did not respond within the prescribed period, the Tribunal determined that section 359C applied, meaning the applicant was not entitled to a hearing under section 360(3) and the Tribunal had no power to permit them to appear, as per *Hasran v MIAC* [2010] FCAFC 40. Consequently, the Tribunal proceeded to a decision without further information.

The Tribunal affirmed the delegate's decision not to grant the Subclass 186 visa. The applicant had not satisfied the essential criteria for the Temporary Residence Transition stream, and no claims were made in respect of other visa streams.