Aulakh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Mr Aulakh, a citizen of India, sought judicial review of a decision by the Administrative Appeals Tribunal (Tribunal) which found it lacked jurisdiction to review the refusal of his application for a Temporary Work (Skilled) (Class UC) (subclass 457) visa. The visa application was refused by the Minister's delegate because Mr Aulakh's prospective employer did not have an approved nomination, a requirement under clause 457.223(4) of the Migration Regulations 1994 (Cth). Mr Aulakh subsequently applied to the Tribunal for a review of this refusal.

The primary legal issue before the court was whether the Tribunal erred in determining it did not have jurisdiction to review the delegate's decision. This turned on whether the delegate's decision was a "reviewable decision" under Part 5 of the Migration Act 1958 (Cth) at the time Mr Aulakh applied for review. The Tribunal had invited Mr Aulakh to comment on the validity of his review application, noting that he was not identified in an approved or pending nomination, nor was there a pending application for review of a decision regarding his sponsor or nomination. Mr Aulakh did not respond to this invitation.

The Tribunal reasoned that for a decision to refuse a Subclass 457 visa to be reviewable, Mr Aulakh must have been sponsored or nominated as required by a criterion for the visa grant at the time of the review application, or there must have been a pending application to review a decision not to approve his sponsor. The Tribunal found that neither of these conditions were met, concluding that the delegate's decision was not a reviewable decision and therefore the Tribunal had no jurisdiction. The court was asked to consider whether the Tribunal's finding that the review application was not properly made was correct.

The court found that the Tribunal had jurisdiction to review the delegate's decision. The court held that the Tribunal's interpretation of the relevant provisions of the Migration Act and Regulations was too narrow. It determined that the delegate's decision was a reviewable decision because Mr Aulakh had applied for the visa and the delegate had made a decision to refuse it. The court quashed the Tribunal's decision and remitted the matter to the Tribunal for determination according to law.