Bao v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs

This case concerned an application by Hieu Thuan Bao for judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs' refusal to grant Mr Bao a Regional Employer Nomination (subclass 187) visa. Mr Bao, a citizen of Vietnam, had applied for the visa in March 2017, nominating a position as a "retail manager" and being sponsored by Lam Quang Trang. The nomination was refused by the Department of Home Affairs, leading to the subsequent refusal of Mr Bao's visa application. The AAT affirmed this decision.

The applicant sought judicial review on two grounds: that the AAT failed to provide him with sufficient opportunity to explain his case, and that the AAT failed to consider alleged negligence by his previous migration agent. The court was required to determine whether the AAT had committed jurisdictional error in its decision-making process. The court clarified that its role was not to review the merits of the AAT's decision but to ascertain if any jurisdictional error had occurred, such as the decision-maker identifying the wrong issue, ignoring relevant material, relying on irrelevant material, failing to follow mandatory procedures, exhibiting bias, or making an illogical or unreasonable decision.

Kendall J found that the AAT had provided the applicant with two opportunities to submit material and arguments prior to the hearing, and that the hearing itself, though brief, did not demonstrate a denial of engagement. Crucially, the court noted that even if the applicant had wished to further explain his circumstances, the absence of an approved nomination, which the applicant himself confirmed, meant the AAT was bound to affirm the delegate's decision. Regarding the second ground, the court found that as the applicant was not represented by a migration agent before the AAT, any alleged negligence by a previous agent could not have impacted the Tribunal's decision-making process.

Consequently, the application for judicial review was dismissed.