Khare v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The applicant sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed a delegate's decision to refuse his application for a Subclass 457 visa. The core of the dispute revolved around the applicant's failure to meet a mandatory requirement for the visa: an approved nomination by an employer. The applicant's nominating employer's application for sponsorship approval was refused by the Department, and a subsequent review application by the employer to the AAT was found to be outside the Tribunal's jurisdiction. The applicant himself confirmed to the Tribunal that he did not have an approved nomination at the time of the AAT's decision.

The legal issues before the court were whether the AAT erred in law in affirming the delegate's decision, and whether the applicant was denied procedural fairness. Specifically, the court considered if the AAT had jurisdiction to review the delegate's decision, and if any alleged breaches of sections 359A or 359AA of the Migration Act 1958 (Cth) occurred. The court also had to determine if there was any unarticulated jurisdictional error in the AAT's decision-making process.

Humphreys J reasoned that a prerequisite for the grant of a Subclass 457 visa was an approved employer nomination. As the applicant did not have such an approval, the Tribunal was compelled to affirm the delegate's decision. The court found no breach of procedural fairness, noting the applicant was invited to a hearing, could give evidence, and present arguments. Crucially, the court observed that the Migration Amendment (Temporary Skills Shortage Visa and Complimentary Reforms) Regulation 2018 had repealed the provisions relating to Subclass 457 visas and the nomination approval process. Consequently, remitting the matter to the Tribunal would be futile, as it was no longer possible to seek approval for a nomination to sponsor a prospective 457 visa holder.

Accordingly, the application for judicial review was dismissed. The court found no jurisdictional error had been made out.