Reasoning
18 The structure of subclass 805 and its inter‑relationship with reg 5.19 leads me to the conclusion that a review of a decision to refuse a visa under that subclass involves, and requires, a review of the matters provided for in reg 5.19. What is significant is that recourse to the provisions of that regulation must be made in order to determine whether the criteria provided for in subclass 805 have been satisfied. The structure of the Regulations at the relevant time indicates that when making a decision in respect of a General (Residence) (Class AS) subclass 805 (skilled) visa application, the decision maker was required to consider the criteria contained in subclass 805 which then referred the decision maker to the provisions of reg 5.19. There are references to reg 5.19 throughout subclass 805, relevantly, in cl 805.213(3) in relation to criteria to be satisfied at the time of the application, and cl 805.222 in relation to the criteria to be satisfied at the time of the decision. Regulation 5.19 prescribes requirements which are to be met by an employer nomination in order for the appointment to which it relates to qualify as an approved appointment for the purpose of subclass 805. Regulation 5.19 cannot stand, and should not be looked at, in isolation. Regulation 5.19 does not have a life of its own independently of subclass 805. Recourse is only made to it for the purpose of determining whether particular provisions of subclass 805 have been satisfied. If a decision is not to be made under subclass 805, reg 5.19 lies dormant.
19 The interrelationship between, and interdependence of, the provisions of subclass 805 and reg 5.19 can be demonstrated by a number of provisions in reg 5.19. In reg 5.19(2)(f) there is a reference to "the applicant". The Minister submitted that the content of reg 5.19(2)(f) showed that it was referring to the position to be filled for which the nomination was made. But sub‑reg 2(f) refers specifically to "the applicant', not any person filling the position, the subject of the nomination. The expression "the applicant" is not defined in, or for the purposes of, reg 5.19 and can only mean an applicant for a visa under subclass 805 who is seeking to satisfy that criterion in cl 805.213(3) which requires a nomination in accordance with reg 5.19(2).
20 In reg 5.19(3)(b)(ii) there is a reference to a period of at least three years "before making the application". Again "the application" is not otherwise defined in, or for the purposes of, reg 5.19. It can only mean an application for a visa under subclass 805. In reg 5.19(3)(c) there is provision for the Minister to assess the level of competence acquired by the relevant "highly skilled person". This is not a person in the abstract, but rather a particular visa applicant.
21 If reg 5.19 were to be considered as requiring or authorising a separate decision independently of any visa application, those terms would have no meaning or content. To give reg 5.19 meaning and context there must be a visa application within subclass 805.
22 The Regulations do not provide for a separate and distinct process of determining whether an employer nomination should be accepted. Rather, reg 5.19, in its language, provides a dictionary and definitional provisions for the purposes of subclass 805. Regulation 5.19(1) states:
"A proposed appointment is an approved appointment for the purpose of those Regulations if …".
Reg 5.19(2) states:
"An employer nomination meets the requirements of this subregulation if …"
Reg 5.19(4) states:
"An employer nomination meets the requirements of this subregulation if …"
23 Although regs 5.19 and 4.02 have been amended to provide for the making of a separate decision by the Minister in relation to the approval of employer nominations and for review of the Minister's decision, at the relevant time reg 5.19 did not provide for the making of a separate decision by the Minister and there was no provision for separate review of the matters contained in reg 5.19. At the relevant time, there was only one decision to be made in relation to the grant of the visa, being whether the criteria contained in subclass 805 were satisfied. The only relevance of an employer nomination was to satisfy one of those criteria.
24 The Minister submitted that reg 5.19 was concerned with assessing the position of employment and not the visa applicant and that a decision on the matters contained in reg 5.19 was necessary before a decision could be reached in relation to the subclass 805 criteria. The Minister contended that the matters in reg 5.19 were only within the knowledge and comprehension of the employer and that this indicated the separateness of the decision making process. The Minister referred to Form 785 which was an administrative form prepared by the Department of Immigration and Ethnic Affairs in relation to nominations under the employer nomination scheme and submitted that each of the questions on the form could be addressed by a potential employer without a particular applicant in mind. The employer could lodge the nomination with a view to employing someone at a later stage. Administratively, it was the employer who completed the Form 785 and proposed the position and the employer had to pay a separate fee of $270 at the time of application. In particular, the Minister referred to the following note on the form under the heading "Details of Nominee":
"Note: If you have selected someone for the position, please provide the following details. If you have not selected someone, the details can be provided at a later date after a decision has been made on the nomination."
25 The Minister submitted that this note was consistent with the submission that a decision could be made whether to approve an appointment under regs 5.19(1) and (2) without identifying an individual applicant. I consider that Form 785 and the particular administrative practice of the Department at the time are not determinative of the proper construction of the Regulations. The fact that the employer nomination was made by the employer and not the applicant and related to a particular position offered does not lead to the conclusion that the nomination required a separate decision from the decision in relation to the visa application. Although the nomination had to be assessed by reference to the criteria in reg 5.19, that assessment was only required for the purpose of determining whether a particular applicant satisfied the criteria of subclass 815. It was only when a particular applicant applied for a visa under subclass 805 that the provisions of reg 5.19 were brought into play to see if the relevant expressions and the terms in subclass 805 were satisfied by reference to their definitional criteria in reg 5.19.
26 The Minister submitted that when the decision maker turned to subclass 805 to determine whether the visa criteria were satisfied, he or she looked at the applicant's characteristics and whether the applicant could satisfy the criteria for a skilled visa, and that this process was distinct from the assessment of the employer's application under reg 5.19. The Minister submitted that a decision to refuse a nomination may not necessarily lead to a decision to refuse a visa, for example, if somebody had been rejected in relation to a nomination, they may still be granted a visa by coming within the terms of subclause 805.212(6) or (7) which, broadly, applied to people with particular distinguished records of achievement or talent.
27 If a person were to apply for a subclass 805 visa claiming that he or she met the criteria contained in subclause 805.212(6) or (7) in addition to the criteria contained in subclauses 805.213 and 805.222, that person might be granted the visa if he or she satisfied subclause 805.212(6) or (7) but did not satisfy subclause 805.213 because he or she had not been nominated in accordance with reg 5.19(2). However, this does not mean that there must have been a separate decision under reg 5.19 in relation to the employer nomination before a decision could be made in relation to the visa. Rather, the position would be that the employer nomination would not satisfy reg 5.19(2) because it did not meet the six requirements of reg 5.19(2). No decision would be made that the employer nomination did, or did not meet, the requirements of reg 5.19(2)
28 The Minister sought to rely on the decision in Hu v Minister for Immigration and Multicultural Affairs [2001] FCA 66 in which the Court upheld the decision of the Tribunal that it did not have jurisdiction to review a decision under reg 1.20H of the Regulations to refuse a nomination of an activity in which an individual was proposed to be employed in Australia by a person who did not operate a business in Australia as part of the Tribunal's review of the decision to refuse to grant a visa. The Minister submitted that this decision showed that there can be two separate decisions even where they are made by the same delegate. That decision is of little relevance to the present case. It concerned a different regulatory framework under which, in particular, there was a separate process for the approval of nominations of business activities by the Minister by instrument in writing. Regulation 1.20H provides:
"(1) Subject to this Regulation, the Minister may, by instrument in writing, approve, or refuse to approve, the nomination of an activity in which an individual is proposed to be employed in Australia.
…"
Unlike reg 5.19, reg 1.20H provides for a decision to be made by the Minister. Regulation 5.19 rather than providing for a Ministerial decision, requires a number of facts and circumstances to be established. Under reg 5.19(2), an employer nomination "meets the requirements" of that sub‑regulation if a number of objective criteria are satisfied and if the Minister is satisfied of certain matters (par 7 above). Under reg 5.19(4), an employer nomination "meets the requirements" of that sub‑regulation if a number of objective criteria are satisfied. None of these matters are the subject of a specific decision as in reg 1.20H. The provisions relating to Ministerial satisfaction do not exclude the essential character of reg 5.19 being that of a definitional provision and they form but one link in a chain which determines, in definitional terms, whether criteria in subclass 805 have been satisfied.
29 The Minister submitted that although the Tribunal determined that it was precluded from reviewing whether the appointment had been approved, it went on to make a finding of fact that the nomination had been withdrawn and, consequently, determined that the applicant did not meet the requirement of subclause 805.213(3)(a). However, the Tribunal made no reasoned finding on the issue whether there was an appointment in accordance with reg 5.19 for the purposes of cl 805.21 or an approved appointment, within the terms of reg 5.19 for the purposes of cl 805.22. The Tribunal's statement that it "notes that the nominating Australian company had not actually employed the visa applicant, and had withdrawn the nomination" was not couched in the language of a finding or a determination of an issue required to be resolved. Even if it could be so viewed, it was reached after the Tribunal had precluded itself from investigating this issue by finding that it could not review "the regulation 5.19 issues as part of the visa review". Put another way, the Tribunal did not address the issue in accordance with the provisions of the Regulations.
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.
32 The decision of the Tribunal made on 29 May 2000 will be set aside and the matter will be remitted to a differently constituted Tribunal to be determined according to law. The Minister should pay the applicant's costs.