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

This matter concerned an application for a constitutional writ under s 476 of the *Migration Act 1958* (Cth) brought by the applicants against the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The application sought review of a decision by the Administrative Appeals Tribunal (the Tribunal) dated 21 February 2020, which affirmed a delegate's decision to refuse the applicants' Employer Nomination (Subclass 186) Visas. The primary applicant, an Indian citizen, along with her husband and daughter, sought to challenge the Tribunal's finding that she did not have an approved nomination, a criterion under cl 186.223 of the *Migration Regulations 1994* (Cth).

The central legal issue before the Court was whether the Tribunal had engaged in a reviewable error by acting in a "manifestly unreasonable and unconscionable way." The applicants contended that the Tribunal failed to provide adequate notification, particularly given awareness of potential fraud by agents and employers, and that the decision lacked proper, genuine, and realistic consideration. The applicants' submissions also appeared to invite the Court to consider compassionate or discretionary grounds and the merits of their visa application.

Street J held that the Court's jurisdiction under s 476 of the *Migration Act* was limited to reviewing errors of law and did not extend to merits review or granting relief on compassionate or discretionary grounds. The Court noted that the Tribunal had followed the correct procedure by inviting comment on the absence of an approved nomination under s 359A of the Act, and no response was received. The applicants' desire not to return to India and the perceived difficulties in obtaining employment were found to be matters for compassionate or discretionary consideration, which the Court lacked the power to grant. Consequently, the Court found that the applicants had not identified an arguable case for the relief sought.