Sood v Minister for Immigration and Citizenship [2026] FedCFamC2G 92

1. By application filed on 17 June 2022, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 31 May 2022. The Tribunal affirmed the decision of a delegate (the delegate) of the First Respondent (the Minister) to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa (the visa) under s 65 of the Migration Act 1958 (Cth) (the Act).

1. This background is drawn from the Tribunal's reasons and is not contested by the parties.
2. The applicant applied for the visa on 2 March 2018. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme). The applicant sought the visa under the Temporary Residence Transition stream, to work in the nominated position in the occupation Hair or Beauty Salon Manager (ANZSCO 142114).
3. On 22 May 2019, the delegate refused to grant the visa because the applicant did not meet

cl 187.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations), which required her to be the subject of an approved nomination. The delegate found that the nomination lodged by Kartar Dhaliwal Pty Ltd was refused by a delegate of the Minister for Home Affairs on 23 April 2019. 4. Accordingly, as the nomination application had been refused, the delegate found that

cl 187.223(2) was not met and therefore, the applicant did not meet cl 187.223 of Schedule 2 to the Regulations. 5. On 12 June 2019, the applicant applied to the Tribunal for review of the delegate's decision. The applicant provided a copy of the delegate's decision to the Tribunal. 6. On 25 March 2022, the applicant appeared before the Tribunal by telephone, to give evidence and present arguments. The matter was heard concurrently with the related review of the nomination application (AAT Case file 1911878). 7. The applicant was represented in relation to the review. The representative attended the Tribunal hearing. 8. On 31 May 2022, the Tribunal affirmed the decision under review.

1. The dispositive issue before the Tribunal was whether the applicant met the requirements of

cl 187.223 of Schedule 2 to the Regulations. 2. At [1]-[11], the Tribunal outlined the procedural history of the matter. 3. At [13]-[14], the Tribunal set out the requirements under clause 187.223, which it also attached to the decision. 4. At [16], the Tribunal noted that on 12 May 2022, it had sent a s 359A letter to the applicant, inviting her to comment on or respond to information the Tribunal considered would, subject to her comments, be the reason or part of the reason for affirming the decision under review. The information concerned the Tribunal's decision to affirm the decision not to approve the nomination made by Kartar Dhaliwal Pty Ltd (AAT Case file 1911878), and the Tribunal explained that nomination was required for the applicant to satisfy cl.187.223(2). 5. At [17], the Tribunal recorded the response provided by the applicant on 26 May 2022, stating although she understood the nature of the adverse information, she would not withdraw her application. 6. At [18], the Tribunal noted at the hearing, it informed the applicant that the visa could not be granted without an approved nomination, which the Tribunal had no evidence of. 7. The Tribunal found the nomination application associated with the position was not approved. Therefore, the applicant did not meet the requirements of cl.187.223 of Schedule 2 to the Regulations. 8. Consequently, the Tribunal affirmed the decision under review.

1. On 17 June 2022, the originating application for judicial review was filed. The applicant filed an accompanying affidavit which annexed the Tribunal's decision.
2. On 21 October 2025, the applicant filed their written submissions.
3. On 18 November 2025, the parties appeared at the hearing, held at the Parramatta registry of the Court.
4. The applicant was represented by Mr D Godwin of counsel. The Minister was represented by Mr T Reilly of counsel.
5. This matter was heard concurrently with SYG 848 of 2022, being the application for judicial review of the Tribunal's decision affirming the delegate's decision not to approve the nomination of the position for which the applicant was identified as the nominee.
6. At the hearing, the Court Book, filed by the Minister on 16 September 2022, was tendered into evidence and marked Exhibit CB2.

1. The application for judicial review filed on 17 June 2022 advanced one ground of review (without alteration):

The Tribunal found that the applicant did not satisfy clause 187.223 as the nomination of the position had not been approved. However the refusal to approve the nomination itself was unlawful and reliance upon the refusal infects the Tribunal's decision with jurisdictional error.

1. In Mora v Minister for Immigration and Border Protection [2018] FCA 1819 (Mora), Collier J stated at [53]-[57]:

53. In his supplementary submissions, the Minister submitted that, even in the event that the nomination decision were infected by jurisdictional error, it would be necessary nonetheless for the appellants to demonstrate a jurisdictional error in the visa decision itself, and it would not be possible for the Court to infer jurisdictional error in that second decision. The Minister noted that the appellants raised no grounds of appeal in respect of the visa decision - the grounds of appeal were directed solely to establishing that there was error in the nomination decision.

54. The Minister further submitted that the effect of a finding that the nomination decision was affected by jurisdictional error did not have the effect that the first appellant was then subject to an approved nomination. To the contrary, in such event the first appellant would continue to fail to satisfy the requirement that she was the subject of an approved nomination.

55. However, in my view it is illogical that the visa decision could be valid notwithstanding the invalidity of the nomination decision. I take this view for the following reasons:

• Decisions relating to nominations and the grant or refusal of visas within this particular statutory context are inextricably linked. This was explained by the Tribunal itself in the visa decision at [12] and [16]. Although only criterion for the grant of a 457 visa, being the subject of an approved nomination is an essential aspect of a successful application for a 457 visa and a significant part of the consideration of the relevant decision-maker - see cl 457.223(4)(a).

• As a matter of fairness and logic, because the appellants have been successful in challenging the nomination decision, and the visa decision was made on the basis of that nomination decision, the visa decision should not stand. In this regard I also note that if it were the case that the visa decision remained valid and in force notwithstanding jurisdictional error in the nomination decision, an order quashing the nomination decision and remitting it for consideration by the Tribunal would essentially have no effect, and indeed no operation in relation to the purpose for which the application was made - being relevant in these circumstances to the employment of the first appellant by the Trust.

56. I further consider that there is no prejudice to the Minister in the failure of the appellants to include a specific ground of review pertaining to whether the visa decision was affected by jurisdictional error. The orders sought by the appellants clearly indicated that they were seeking remedies in respect of both the nomination decision and the visa decision, which is unsurprising given the inextricable link between the outcome of the nomination decision and the 457 visa criteria. In any event, the Minister has been given ample notice of, and indeed an opportunity to provide further written submissions relating to, this issue.

57. It follows that, in the present circumstances, the finding of jurisdictional error in respect of the nomination decision necessarily means that the visa decision cannot stand.

1. In KC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 4 Rares J stated at [40]:

The Minister accepted, correctly, that the nomination decision may be liable to be set aside if the visa decision were vitiated by jurisdictional error. As Collier J explained in Mora v Minister for Immigration and Border Protection [2018] FCA 1819 at [54]- [57], with whose analysis in Song [2019] FCA 970 at [34], in obiter dicta, Perram J appeared to agree, a visa decision and a nomination decision are inextricably linked ([2018] FCA 1819 at [56]). That is because although each decision involves the decision-maker determining whether the relevant applicant has satisfied particular criteria prescribed for the grant of that person's application for either a visa or approval of a nomination, the Regulations also prescribe that there exist at least the other pending or successfully decided application. That is, one of those applications cannot succeed without the other, since each involves the same holder or applicant for a subclass 457 visa and the same applicant to sponsor that person for that visa.

1. As observed by Collier J in Mora at [55], decisions relating to nominations and the grant or refusal of visas within this particular statutory context are 'inextricably linked'.
2. It is accepted, as submitted by the applicant, that if the nomination decision was found be affected by jurisdictional error and an order was made quashing that decision, then the visa decision should also be quashed in circumstances where the only basis for refusal of the visa was the refusal of the related nomination.
3. In the related matter of SYG 848 of 2022, however, I dismissed the application for judicial review of the Tribunal's decision affirming the decision of the delegate not to approve the nomination in which the applicant was identified as the nominee.
4. In the circumstances, where the related proceeding in respect of the nomination has been dismissed, the present application should also be dismissed because applicant would not, in any case, be able satisfy the criteria for the grant of the Subclass 187 visa: Singh v Minister for Immigration & Border Protection [2017] FCAFC 105; (2017) 253 FCR 267 at [82]-[90].

1. For these reasons, the application for judicial review must be dismissed.
2. I will hear the parties as to costs.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros.