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

Street J of the Federal Court of Australia considered an application for a constitutional writ under s 476 of the *Migration Act 1958* (Cth). The applicants, citizens of India, sought review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed a delegate's refusal to grant them Employer Nomination (Subclass 186) Visas. The delegate's initial refusal, and subsequently the Tribunal's affirmation, were based on the applicants failing to meet the criteria under cl 186.223(2) of sch 2 to the *Migration Regulations 1994* (Cth) due to the absence of an approved nomination at the time of decision.

The central legal issue before the Court was whether the Tribunal had erred in affirming the delegate's decision to refuse the visas. This involved determining if the applicants had satisfied the regulatory requirements for the visa, specifically concerning the necessity of an approved nomination. The Court also had to consider the applicants' request for an adjournment of the proceedings to obtain further documents and consult a migration agent.

Street J reasoned that the applicants had not met the visa criteria as there was no approved nomination, a fact the Tribunal had properly identified under s 359A of the Act. The Court found that it could not receive a new, separate approved nomination after the Tribunal's decision, as this would involve making fresh findings of fact which is beyond the Court's jurisdiction in this type of review. Furthermore, the Court was not satisfied that the first applicant was unable to meaningfully participate in the hearing, nor did it find substantive merit in the application for the relief sought. Consequently, the application for an adjournment was dismissed, and the substantive application was also dismissed.