UMER (Migration)

This matter concerned an application for an Employer Nomination (Permanent) visa (Subclass 186) by the applicant, based on an employer nomination lodged by Lycetech Pty Ltd. The Administrative Appeals Tribunal (AAT) was required to determine whether the nomination for the position had been approved, as stipulated by clause 186.223 of the Migration Regulations.

The primary legal issue before the Tribunal was whether the nomination met the requirements of clause 186.223, specifically subclause (2) which mandates that the Minister has approved the nomination. The Tribunal noted that the Department had previously refused the associated nomination on 11 August 2016, and despite being provided with an opportunity to comment, the applicant did not respond. Subsequently, the Tribunal affirmed the Department's decision not to approve the nomination on 21 August 2018. The Tribunal then invited the review applicants to provide comments on this decision, which was relevant to the approval requirement under clause 186.223(2).

The Tribunal reasoned that as the review applicants failed to provide comments within the prescribed period, section 359C of the Migration Act applied, meaning they were not entitled to appear before the Tribunal. Citing *Hasran v MIAC* [2010] FCAFC 40, the Tribunal concluded it had no power to permit an appearance where there was no entitlement to a hearing. Given that the associated nomination had not been approved by the Tribunal, the primary requirement of clause 186.223(2) was not met. The Tribunal also noted that the secondary applicant's eligibility was dependent on the primary applicant meeting the visa requirements, which they did not. Consequently, the Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) visas to either applicant.