Case: Suh v Minister for Immigration and Citizenship [2009] FCAFC 42 , 175 FCR 515
Outcome: followed
to the amendments this consequence, it has been recognised, may have occasioned " injustice ": Suh v Minister for Immigration and Citizenship (" Suh ") [2009] FCAFC 42 at [17] , [2009] FCAFC 42 ; 175 FCR 515 at 519. Spender, Buchanan and Perram JJ there referred to the procedures prescribed " for a range of other nominations and sponsorships " and continued: [10] The contrast with the operation of cl 442 of Sch 2 is stark. There is no set of criteria identified for assessing a nomination for the purpose of occupational training. There is no specific requirement that such a nomination be approved or refused, although cl 442.222(1) contemplates both lodgment and approval as a precondition to a successful application for a subclass 442 visa. No right of review is given. It is tempting to regard that as a case of simple oversight or inattention. The consequences are serious as the present case demonstrates. Their Honours concluded: [14] However, a decision not to approve a nomination made for the purpose of cl 442.222(1) is not reviewable. Section 338 of the Act specifies what decisions are reviewable by the MRT including, under s 338(9), decisions which are prescribed for that purpose. A decision not to approve a nomination for the purpose of cl 442.222(1) is neither identified by s 338 nor elsewhere prescribed for that purpose. There was, accordingly, no right of review available against that decision ... In respect to the application there being made, as in the present case, to seek review of the decision of the Tribunal to refuse the visa, their Honours ultimately concluded: [26] ... There is no doubt that the appellants had a right to seek review of the delegate's decision to refuse a visa. The MRT had authority to deal with the merits of the visa applications. In that review, however, the visa applications suffered from a fatal defect that was beyond the reach of the MRT. The first appellant was required by cl 442.221 to satisfy each of the requirements in cl 442.222 to cl 442.229. That was not possible. There was no approved nomination as required by cl 442.222 and that was a matter with which the MRT could not deal. The decision to refuse the nomination was not reviewable. The MRT therefore had no choice but to affirm the subsidiary decision of the delegate to refuse the visa applications. That decision had been effectively shielded from any form of merits review by the MRT. It is therefore not open to find that the MRT committed any jurisdictional error. The potential for " injustice " may now have been addressed &#8212; at least in respect to applications made on or after 14 September 2009 &#8212; by the recent amendments to both the Act and the Regulations . But it is the Act and the Regulations prior to the 2009 amendments which continue to apply to the present Appellant. The Grounds of Appeal as set forth in the Notice of Appeal are as follows: The nomination decision must be reviewed at the Tribunal as a part of reviewable decision of the visa application if the nominator does not have a review right separately. The applicant lost a fair chance of presenting his case effectively as the nominator does not have a review right. The occupational trainee nominator also must have a review right as all other nominators have their review rights against the decisions on their applications. However the Grounds may be expressed, the fundamental difficulty confronting the Appellant is the simple fact that the Tribunal's decision was founded upon the delegate's refusal to accept the nomination. And that decision of the delegate was not then reviewable by the Tribunal. Given the terms of s 338, the fact that such decisions were not then " prescribed " pursuant to s 338(9) and the decision of the Full Court in Suh , the dismissal of an application seeking review of the Tribunal's decision was inevitable. Although it may readily be appreciated why the Appellant seeks to have the refusal to accept the nomination included as part of the review of what Ground 1 refers to as a " reviewable decision ", such a contention is contrary to the decision in Suh . There is some ambiguity in what is intended to be conveyed by Ground 2. If it is but a different way of expressing Ground 1, it adds nothing to the appeal. If, however, Ground 2 is intended to assert the loss of an opportunity to advance submissions before the Tribunal, this was not a ground agitated before the Federal Magistrate. Given the conclusion that a decision to refuse a nomination was not then reviewable by the Tribunal, it is difficult to envisage what the now Appellant (or anyone else) could have said which would have changed the decision reached. Moreover, it is not at all self-evident that the now Appellant has been denied " a fair chance of presenting his case ". The now Appellant was invited to attend the hearing before the Tribunal and did in fact attend a hearing on 21 November 2008. Why that hearing did not present the " fair chance " to which Ground 2 may be directed remains unexplained. Leave to raise Ground 2 is thus refused and, even if leave were granted, it would have been rejected.