Did r 5.19 require position to be geographically fixed?

The department refused the nomination and visa applications, after which the Tribunal affirmed the nomination refusal. The Tribunal then affirmed the visa refusal, as cl 187.233(3) of Schedule 2 to the Regulations required that the nomination application be approved. Separate judicial review applications were then filed with the Circuit Court for each of the Tribunal's decisions. The decision of the Circuit Court concerning the nomination decision is referred to as "Harsinco FCCA". The decision of the Circuit Court concerning the nomination decision is referred to as "Singh FCCA". The circuit court dismissed both judicial review applications.

The application for judicial review of the Tribunal's decision to affirm the visa refusal argued that:

(1)    on his application for judicial review in the FCCA, Mr Singh was entitled to challenge the Tribunal’s conclusion that Criterion 187.223(3) was not satisfied;

(2)    in Singh FCCA the primary judge resolved that issue by implicitly adopting the same reasoning he had employed in HarsincoFCCA;

(3)    for the purposes of this appeal, Mr Singh is entitled to assert that the primary judge committed appealable error by importing erroneous reasoning from Harsinco FCCA. The grounds of appeal do not involve any impermissible “collateral challenge”;

(4)    accordingly, on its proper construction, Criterion 187.233(3) refers to a decision that has been made in the valid exercise of the Minister’s power under reg 5.19(4), that is, a decision unaffected by jurisdictional error.

Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:

Question 1: Does the Tribunal have power to grant a visa or to refuse to grant a visa under s 65 of the Migration Act 1958 (Cth)?

Question 2: Does the Tribunal have power to approve a nomination application or to refuse a nomination application under r 5.19 of the Migration Regulations 1994 (Cth)?

Question 3: Did the visa applicant have standing to challenge the Tribunal's nomination decision through the judicial review application of the Tribunal's visa decision

Question 4: Should the word “approved” in cl 187.233(3) bear the same meaning as it does in the phrase “approve the nomination” and “refuse to approve the nomination” in r 5.19(4)?

Question 5: Does the word “approved” in cl 187.233(3) mean a decision in fact, whether or not the conditions on the power conferred under r 5.19 are complied with, in other words whether or not the nomination decision is affected by jurisdictional error?

Question 6: Is the visa applicant a person having an obvious interest in the outcome of the nomination application and so a person who could make a judicial review application to the High Court based on his preferred construction of both r 5.19 and cl 187.233(3)?

Question 7: Do the grounds of appeal involve a “collateral challenge” to the Tribunal's nomination decision?

Question 8: As the Tribunal's nomination decision was affirmed on judicial review in Harsinco FCCA, does it remains final and binding on the parties until such time as that decision is reversed?

Question 9: Is the phrase "in connection with visas" in s 486C(1)(a) of broad application?

Question 10: If the answer to Question 3 is 'no' and the answer to Question7 is 'yes', do such answers prohibit a collateral challenge of the type sought to be advanced?

Question 11: Does the term “position”, within the meaning of r 5.19, refer to “a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances”?

Question 11: Does the term “position”, within the meaning of r 5.19, refer to “a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances”?

Question 12: Does the term “position”, within the meaning of r 5.19, only include a role where the work was performed at a single location?

Question 13: If the answer to Question 12 is 'no', can it nevertheless be said that "the effect of the requirements, identified in the preceding paragraph, may mean that where the 'position' does not identify a particular location that the nominator may be unsuccessful in its application because of the inability of the Minister to be satisfied of the requirements of the Regulation"?

Question 14: For the purpose of determining what a “position” comprises, when determining the nomination application, does it involve "a factual assessment where account will be taken of the contract of employment, as well as other supporting documentation contained within the application"?

The FCAFC answered those questions as follows: