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

The case of Lin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs involved a Chinese national who had applied for a Temporary Business Entry (Subclass 457) visa. The applicant, who had initially arrived in Australia on a subclass 457 visa in 2013, sought to extend his stay through a new visa application in 2014. Despite multiple invitations from the Department of Immigration and Border Protection for additional information, and several attempts to secure a sponsoring employer, the application was ultimately refused in 2018 on the basis that the applicant was not the subject of an approved nomination. The applicant sought judicial review of the Tribunal's decision to dismiss his application for review of the delegate's refusal.

The primary legal issue before the Court was whether the Tribunal had fallen into jurisdictional error by proceeding to make its decision without an appearance from the applicant and without taking further steps to obtain comments from him. The applicant argued that the Tribunal had previously determined that it did not have jurisdiction to hear an appeal from Newlink (the applicant's nominator), and therefore, there was "no pending nomination" from Newlink that allowed the Tribunal to assess his application. The Minister, on the other hand, submitted that the Tribunal did not err in law or otherwise in making its decision.

The Court considered the legislative provisions and the Tribunal's decision in detail. It noted that the Tribunal had invited the applicant to comment on various issues, including the lack of an approved nomination and adverse information regarding an employment reference letter. Despite these invitations, the applicant did not respond. The Tribunal found that it did not have jurisdiction in relation to the Newlink Application because Newlink had been deregistered, and that the 457 visa criteria had been repealed and replaced. The Tribunal concluded that, as the applicant did not respond to the invitation, he was no longer entitled to appear before the Tribunal, and that it had no power to permit an appearance. The Court found that the Tribunal had not fallen into jurisdictional error. The Tribunal's decision was well reasoned, and the Court was satisfied that the Tribunal had correctly applied the relevant legislative provisions.

The Court dismissed the application for judicial review, holding that the Tribunal had not erred in law or otherwise in making its decision. The Court found that the Tribunal had appropriately considered the relevant legislative provisions and the circumstances of the case, and had made its decision in accordance with the law. The Court noted that the applicant's arguments, while presented with some clarity, ultimately did not establish that the Tribunal had fallen into jurisdictional error.