Chen v Minister for Immigration, Citizenship and Multicultural Affairs

The applicants in Chen v Minister for Immigration, Citizenship and Multicultural Affairs sought judicial review of a decision made by the Tribunal, which had upheld the Minister's refusal to grant them Subclass 187 visas. The applicants argued that the Tribunal had erred in not considering their age, qualifications, experience, and English language competency, as required by Regulation 187. However, the Court found that the Tribunal was correct in its approach, as the applicants' lack of an approved nomination was an essential requirement for the grant of the visa, and if an applicant fails to meet this criterion, they cannot be granted the visa.

The legal issue before the Court was whether the Tribunal had fallen into jurisdictional error by not considering all relevant parts of Regulation 187 when deciding whether the applicants met the criteria for the grant of the subclass 187 visa. The Court examined the grounds of review put forward by the applicants, which were that the Tribunal had failed to take into account all relevant parts of Regulation 187 when deciding whether the applicant met the criteria for the grant of the subclass 187 visa, including the applicant’s age, qualifications, experience, and the English language competency. The Court found that the Tribunal was correct in determining that the applicants did not satisfy the essential requirement of having an approved nomination, and therefore, the Tribunal was not required to consider any of the other criteria for the grant of the visa.

The Court noted that the criteria for the grant of a Subclass 187 visa in the Direct Entry stream are cumulative, and if an applicant fails to meet one criterion, they cannot be granted the visa. The evidence before the Tribunal clearly indicated that the sponsor’s nomination had been refused. In those circumstances, the Tribunal was correct in determining that the applicants did not satisfy clause 187.233 in Schedule 2 of the Regulations. Therefore, the Court dismissed the application for judicial review.

The Court dismissed the applicants' application for judicial review and affirmed the Tribunal's decision. The Court found that the Tribunal was correct in determining that the applicants did not satisfy the essential requirement of having an approved nomination, and therefore, the Tribunal was not required to consider any of the other criteria for the grant of the visa. The Court noted that the criteria for the grant of a Subclass 187 visa in the Direct Entry stream are cumulative, and if an applicant fails to meet one criterion, they cannot be granted the visa. The evidence before the Tribunal clearly indicated that the sponsor’s nomination had been refused. In those circumstances, the Tribunal was correct in determining that the applicants did not satisfy clause 187.233 in Schedule 2 of the Regulations.