Mathiasz v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)

This matter concerned an application for judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed a delegate's refusal to approve a business nomination. The applicants sought review of the Tribunal's decision, which had found that the first applicant did not satisfy the requirements for a Temporary Business Entry (Class UC) Subclass 457 visa because there was no approved business nomination that had not ceased. Consequently, the second and third applicants, as members of the first applicant's family unit, could not be granted visas.

The primary legal issue before the Court was whether the Tribunal erred in its reliance on the existence of a jurisdictional fact, specifically that the nomination application made by MNS Holdings Pty Limited had been refused by the Tribunal. The applicants' sole ground of judicial review alleged that this jurisdictional fact did not exist. The applicants' counsel conceded that if a separate application made by MNS Holdings Pty Ltd to this Court was dismissed, then the current application by the first applicant must also be dismissed.

The Court reasoned that the nomination application by MNS Holdings Pty Ltd had indeed been dismissed by this Court on 13 March 2020. As a result, the jurisdictional fact relied upon by the applicants as the foundation of their case no longer existed. The Court agreed with the concession made by the applicants' counsel that the current application could not succeed because the first applicant did not meet the relevant criteria for the visa, as a condition precedent was missing. The Court noted the lengthy delay in the proceedings, which it considered regrettable and not in the interests of the applicants or the administration of justice.

Accordingly, the application for judicial review was dismissed.