Xu v Minister for Immigration

The applicant, Mr Xu, sought judicial review of a decision by the former Migration Review Tribunal (MRT) which affirmed the Minister for Immigration's refusal to grant him Employer Nomination (Residence) visas. The core of the dispute concerned the validity of the nomination lodged by a prospective employer.

The primary legal issue before the court was whether the nomination lodged by the employer was validly approved by the relevant delegate of the Minister, as required by the *Migration Regulations 1994* (Cth). Specifically, the court had to determine if the delegate's actions constituted an approval of the nominated position, a prerequisite for the visa application to proceed.

Judge Barnes reasoned that the legislative framework governing these visas mandates a two-stage process: first, the approval of the nominated position by the Minister, and second, the assessment of the applicant's eligibility for the visa. The evidence before the court indicated that the delegate had not undertaken the necessary steps to approve the nominated position. Consequently, the nomination was not validly approved, and the subsequent visa application could not succeed. The court applied the principles of administrative law, focusing on the requirements of the *Migration Regulations* and the necessity for a valid nomination to be in place before a visa could be granted.

The application for review was dismissed.