Ghale v Minister for Immigration and Border Protection

The applicant, Mr. Ghale, sought judicial review of a decision by the Migration Review Tribunal (MRT) which affirmed the refusal of his subclass 457 Business (Long Stay) visa. The primary dispute concerned whether Mr. Ghale met the requirements of subclause 457.223(4)(a) of the Migration Regulations 1994 (Cth), which necessitates an approved nomination by a standard business sponsor that has not ceased. The matter was heard in the Federal Circuit Court of Australia before Judge Emmett.

The court was required to determine if the MRT had erred in finding that Mr. Ghale had failed to provide sufficient evidence of a current approved nomination in relation to him, as required by subclause 457.223(4)(a). This subclause mandates that a nomination must have been approved under section 140GB of the Act, made by a standard business sponsor, and its approval must not have ceased, with regulation 2.75(2)(b) specifying that approval ceases 12 months after approval. The court also considered whether the MRT had adequately addressed the evidence and submissions provided by Mr. Ghale regarding his nomination.

Judge Emmett reasoned that the grounds of Mr. Ghale's application merely challenged the factual findings and conclusions of the MRT. The MRT had repeatedly invited Mr. Ghale to provide evidence of a current approved nomination, and while a nomination application was lodged, no decision had been made on it by the time the MRT made its final decision. The MRT correctly noted that the determination of the nomination application was a matter for the Department, and the Tribunal's role was to assess whether a current approved nomination existed at the time of its review. As no such evidence was presented, the MRT was not satisfied that Mr. Ghale met the requirements of subclause 457.223(4)(a).

The application was dismissed by the court, as it was found that there was no arguable case for the relief claimed. The court concluded that the MRT's decision was open to it on the evidence before it.