Conclusion
18 The appellant's application to the Tribunal was for a review of the delegate's decision to refuse the grant of the visa. She did not apply for a review of the decision to refuse Shark Australia's nomination for occupational training. The first respondent contended that the decision refusing Shark Australia's nomination was not reviewable by the Tribunal.
19 The Tribunal has jurisdiction to review an MRT-reviewable decision and must do so if an application is properly made under s 347 of the Act: s 348 of the Act. Section 338 provides for those decisions which are reviewable as MRT-reviewable decisions. The decision refusing Shark Australia's nomination was not an MRT-reviewable decision within subsections 338(1)-(8) of the Act. Section 338(9) provides:
'(9) A decision that is prescribed for the purpose of this subsection is an MRT-reviewable decision.'
20 The first respondent contended that the Shark Australia decision was not a prescribed MRT-reviewable decision.
21 Regulation 4.02(4)(d) and (e) provide:
'(4) For subsection 338(9) of the Act each of the following decisions is an MRT-reviewable decision -
...
(d) a decision under regulation 1.20H to refuse to approve the nomination of an activity by a business sponsor;
(e) a decision under subregulation 5.19(1B) to reject an application for approval of a nominated position.'
22 A nomination under reg 1.20H relates to a nomination for approval of certain business activities of a business sponsor or party to a labour agreement. A nomination under subreg 5.19(1B) relates to a nomination for approval of an employment position of an employer and is not specific to a particular visa applicant.
23 Those regulations do not govern the application for a nomination by Shark Australia. They do not require consideration of the criteria in Part 442, specifically subclause 442.223(a) and (b).
24 In those circumstances, the decision to refuse Shark Australia's nomination was not an MRT-reviewable decision as it was not prescribed under s 338(9).
25 In the end, I do not think it matters whether it was a prescribed MRT-reviewable decision or not. If it was not as the first respondent contends and I have found, it was not reviewable by the Tribunal. If it was, in my opinion, for the reasons that follow, it was also not reviewable by the Tribunal at the instigation of the appellant.
26 Section 347(2) provides:
'(2) An application for a review may only be made by:
…
(d) If the MRT-reviewable decision is covered by subsection 338(9) - the person prescribed in respect of the kind of decision in question prescribed for the purposes of that subsection.'
27 If, contrary to my opinion, it was an MRT-reviewable deicison, it could only have been an MRT-reviewable decision by virtue of s 338(9). It follows that the only person who may seek a review of that decision is the person prescribed. Regulation 4.02(5)(e) applies to MRT-reviewable decisions under reg 4.02(4) and relevantly provides:
'For paragraph 347(2)(d) of the Act, an application for review of a decision mentioned in subregulation (4) may only be made by:
…
(c) in the case of a decision mentioned in paragraph (4)(d) - the business sponsor to whose nomination of an activity the decision relates;
(d) in the case of a decision mentioned in paragraph (4)(e) - the employer to whose nomination of a position the decision relates.'
28 It follows therefore that the only party who might have sought a review of the decision to refuse Shark Australia's application for nomination was Shark Australia itself because only the business sponsor (reg 4.02(5)(c)) or the employer (reg 4.02(5)(d)) are prescribed persons for the purpose of s 347(2)(d) of the Act.
29 It appears that Shark Australia has never sought a review. The decision of the delegate therefore to refuse Shark Australia's application for nomination must stand.
30 In Tvarkovski v Minister for Immigration and Multicultural Affairs [2001] FCA 375, Goldberg J said at [30]-[31]:
'30 It is an accepted principle of administrative law that the jurisdiction given to a body to review an administrative decision generally extends to a consideration of the decision maker's findings or conclusions which contribute to the final or operative decision: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 338 per Mason CJ. The application of this principle to the Tribunal's decision means that the Tribunal was entitled to review, and should have reviewed, the whole process of decision making in relation to the applicant's visa, which included that part of the decision making process which determined that the applicant had not been nominated in accordance with reg 5.19.
31 I am satisfied that the Tribunal had the power to consider the reg 5.19 issues as part of its review of the decision to refuse the visa application. The Tribunal fell into an error of law by failing to turn its mind to whether the visa criteria were satisfied by reference to the reg 5.19 definitions. The Tribunal precluded itself from considering the reg 5.19 issues by misconstruing the regulations and determining that there was no right of review in respect of employment nominations before 1 July 1999.'
31 In this case, the decision to refuse Shark Australia's nomination was not reviewable by the Tribunal for the two reasons which I have mentioned. First, it was not an MRT-reviewable decision. Secondly, if it was, it was only reviewable at the instigation of Shark Australia.
32 It was for the applicant to satisfy the Tribunal that the applicant met each of the relevant criteria for the grant of the visa. It was for the applicant to put forward any evidence in support of her application and make whatever submissions she wished to establish that she came within the relevant criteria in the Regulations: Abebe v The Commonwealth (1999) 197 CLR 510 at 576.
33 The applicant's application did not require the Tribunal to review the decision of the Minister's delegate to refuse Shark Australia's nomination. In my opinion, no separate duty rested upon the Tribunal to inquire into the decision to refuse Shark Australia's nomination. It would have been pointless for the Tribunal to further inquire into that other decision. That is so because no-one who could seek a review had done so.
34 The question before the Tribunal was whether the decision made by the delegate of the Minister in relation to the refusal of the applicant's application for a visa ought to be affirmed or otherwise. On the information that was before the delegate, it was inevitable that the decision had to be affirmed, as it was. The appellant did not put any material before the Tribunal which the Tribunal failed to consider. The appellant did not attend the Tribunal hearing and her claims were limited to the very brief statements in the letter of 29 May 2005.
35 However, if I am wrong about that, the Tribunal did in fact turn its mind to the nomination assessment as part of its review of the visa decision. I have already mentioned that the Tribunal wrote to the appellant on 13 April 2005 inviting the appellant to comment on the refusal of Shark Australia's application for a nomination and the appellant responded, albeit briefly, on 19 May 2005.
36 In its reasons, the Tribunal stated:
'20. However the primary visa applicant has not provided any evidence as requested by the Tribunal in its letter of 19 March 2005 as to how her application meets Regulation 442.222 of Schedule 2 of the Regulations. The nomination of Shark Australia Pty Ltd for occupational training was refused on 25 January 2005 and the occupational training is not being provided by a body corporate incorporated for a public purpose or an authority or body, not being a body corporate, established for a public purpose, by or under, an Act or regulations made under an Act.
21. Therefore on the basis of all the evidence before it the Tribunal makes the finding that at the time of decision the visa applicant fails to satisfy the requirements of clause 442.222 of Schedule 2 of the regulations.'
37 Clearly, the Tribunal did apply its mind to the refusal by the delegate of Shark Australia's nomination application.