JI (Migration)

The Administrative Appeals Tribunal (the Tribunal) affirmed a delegate's refusal to approve a nomination made under the Temporary Residence Transition stream of the Subclass 186 (Employer Nomination Scheme) visa. The applicant sought judicial review of the Tribunal's decision.

The primary legal issue before the Federal Circuit and Family Court of Australia was whether the Tribunal erred in law by failing to consider, or adequately consider, evidence of the applicant's employment history and the employer's business activities that were submitted after the delegate's decision but before the Tribunal's hearing. Specifically, the court had to determine if the Tribunal was bound by the evidence before the delegate or if it had a broader discretion to consider new evidence in its review of the nomination refusal.

The Court found that the Tribunal had erred in law by failing to consider the further evidence. It held that the Tribunal's review function was not confined to the material before the original decision-maker and that the Tribunal was obliged to consider all relevant evidence placed before it, including evidence of the applicant's employment and the employer's business operations, when assessing whether the nomination met the relevant legislative criteria. The Court emphasised that the Tribunal's role was to conduct a fresh review of the decision, not merely to affirm the delegate's conclusion based on the original material.

The Court set aside the Tribunal's decision and remitted the matter to the Tribunal to be heard and determined according to law.