Federal Court: when considering whether a position is genuine as part of a nomination application under r 2.72, is Minister obliged to consider the tasks of ANZSCO unit group? If not, is Minister at least allowed to consider those tasks? If Tribunal refuses to grant visa on the basis of its refusal to approve nomination and the nominator wins on judicial review so that nomination is remitted back to the Tribunal, should the Court dismiss the visa applicant's judicial review application as the visa applicant still did not have an approved nomination?
Summary and discussion
A business made a nomination application under r 2.72 of the Migration Regulations 1994 and a non-citizen applied for a subclass 457 visa on the basis of that nomination application.
Both applications were refused by the Department. The Tribunal then affirmed the nomination refusal on the basis that it was not convinced that the position was genuine (r 2.72(10)(f)) and affirmed the visa refusal on the basis of lack of an approved nomination.
Both the nominator and visa applicant applied to the Federal Circuit Court (FCCA) for judicial review of the Tribunal's decisions and the FCCA dismissed those applications. They then appealed the FCCA's decisions to the Federal Court (FCA).
The questions to the FCA were as follows:
Question 1: in assessing whether the position was genuine, was the Tribunal obliged to consider not only the tasks of the 6-digit ANZSCO occupation but also the tasks of the respective 4-digit ANZSCO unit group?
Question 2: if the Tribunal was not obliged to consider the tasks of the 4-digit ANZSCO unit group, was it at least allowed to do so?
Question 3: if the nominator's judicial review application is successful and the FCA remits the case back to the Tribunal for reconsideration, does it mean that the FCA would need to dismiss the visa applicant's judicial review application on the basis that the visa applicant still did not have an approved nomination?
The FCA answered as follows...
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