Sino-Aus Motor Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Sino-Aus Motor Pty Ltd sought judicial review of a decision of the Administrative Appeals Tribunal (AAT), which had affirmed the Minister’s decision to refuse the approval of nomination of Ms Jing Jin for a permanent position in Australia. The key issue before the court was whether the AAT’s failure to ascertain that the migration agent had not seen the invitation to provide further information amounted to a jurisdictional error. The court was also required to determine whether the AAT was unreasonable in not making an inquiry as to whether the invitation had been received by the migration agent or in not sending a further invitation.

The court found that the invitation to provide further information was validly issued under s 359(2) of the Migration Act 1958 (Cth). The court also found that the AAT’s failure to ascertain that the migration agent had not seen the invitation did not amount to a jurisdictional error because the AAT was not put on notice that the email had not been seen. Furthermore, the AAT had considered whether to send a further invitation and had decided not to do so for reasons including that the appellant, which was represented, had the opportunity to receive professional advice about the implications of not responding to the invitation. The court held that it was not unreasonable for the AAT to have decided not to send a further invitation, especially considering the nearly two years that had passed since the application was lodged with the AAT.

The appeal was dismissed. The appellant was ordered to pay the first respondent’s costs of and incidental to the appeal, and of the hearing before the Federal Circuit and Family Court of Australia (Division 2).