Nepali v Minister for Immigration

The applicants sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed a delegate's refusal to grant them Subclass 187 Regional Employer Nomination (Permanent) (Class RN) visas. The delegate had refused the visa applications because the primary applicant's nomination had not been approved, a prerequisite under clause 187.233 of the Migration Regulations 1994. The AAT subsequently affirmed this refusal, having also affirmed the delegate's decision regarding the nomination.

The central legal issue before the Federal Court was whether the AAT had committed jurisdictional error in affirming the delegate's decision. Specifically, the court considered whether the AAT had failed to provide the applicants with adequate notice or opportunity to respond to adverse information, particularly in relation to the s.359A notice issued by the Tribunal. The applicants had not responded to the s.359A letter, which invited comments on the Tribunal's intention to affirm the nomination refusal.

Dowdy J found that the applicants had not established any meaningful ground of jurisdictional error. The court noted that the applicants had been given opportunities to comment on the refusal of the nomination, both by the delegate and by the Tribunal. The s.359A letter from the Tribunal was sent to the applicants' nominated email address and provided a 14-day period for response, with a clear warning that the Tribunal might proceed to a decision without a hearing if no comments were received. As the applicants failed to respond to this notice, the Tribunal was entitled to proceed under s.359C of the Migration Act 1958 (Cth) and determine that the applicants were not entitled to a hearing. Consequently, the application for judicial review was dismissed.