Gonchar (Migration)

The applicant, Mr. Gonchar, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse his application for a Subclass 402 (Training and Research) visa, specifically under the Occupational Trainee stream. The nomination for this visa was made by a proposed sponsor who was not an approved sponsor at the time of the nomination. The Subclass 402 visa has since been abolished.

The primary legal issue before the Federal Circuit Court was whether the Minister's decision to refuse the visa application was affected by jurisdictional error. This involved determining whether the delegate of the Minister had correctly applied the relevant legislative provisions, particularly concerning the requirement for a nomination to be made by an approved sponsor. The court also considered the implications of the abolition of the Subclass 402 visa on the review of the refusal decision.

The court found that the delegate had erred in law by failing to consider the applicant's submissions regarding the sponsor's eligibility and the potential for the sponsor to become approved. The delegate had proceeded on the basis that the sponsor was not approved and therefore the nomination was invalid, without adequately exploring whether the sponsor could have been approved or if the nomination could be validly made in the circumstances. The court reiterated the principle that a delegate must consider all relevant material and submissions put before them.

Consequently, the court set aside the decision of the Minister and remitted the application to the Department for reconsideration according to law.