Wajih v Minister for Immigration

The applicants, Mr. Wajih and others, sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT) concerning their Subclass 457 (Temporary Work (Skilled)) visas. The core of the dispute revolved around the validity of the AAT's decision in circumstances where the applicants did not have an approved nomination for their visa applications. The matter was heard in the Federal Circuit and Family Court of Australia before Judge C. E. Kirton QC.

The primary legal issue before the Court was whether the AAT had committed a jurisdictional error in affirming the refusal of the applicants' visa applications, notwithstanding the absence of an approved nomination. This required the Court to consider the statutory requirements for a Subclass 457 visa, particularly the role and necessity of an approved nomination in the visa application process and the AAT's obligations when reviewing such applications.

Judge Kirton QC reasoned that the Migration Act 1958 (Cth) and associated regulations clearly stipulated that an approved nomination was a prerequisite for the grant of a Subclass 457 visa. The AAT, in its review function, was bound by these legislative requirements. As the applicants had not satisfied this fundamental criterion, and no approved nomination was in place, the AAT's decision to affirm the refusal was not infected by jurisdictional error. The Court applied the principle that a tribunal does not err in law by failing to grant a visa when a mandatory requirement for its grant has not been met.

Consequently, the application for judicial review was dismissed.