No Time of Application/Time of Decision Dichotomy for Nominations


For the nomination process, other than reg 5.19(c), there is no time of application/time of decision dichotomy for nominations unlike the ENS visa application which includes time of application and separately time of decision criteria.

This is an extremely important practice point and awareness of this point can convert what may seem a hopeless case into a winning case.  This is because evidence can be added to the nomination process right up to time of decision and the decision maker is not bound by facts in existence at the time the nomination application was lodged.

This is in contrast to the assessment of the visa application itself. For most visas there are time of application criteria and time of decision criteria. Whilst new evidence can be presented at time of decision regarding meeting the time of application criteria, the facts however have to have been in existence as at time of application.  New evidence in this context is about proving facts in existence at time of application even though the evidence to prove those facts had not been supplied at time of application.

In contrast nominations are just about proving the facts which go to establish the nomination.

For example Reg 5.19 states:

[5.19] (4)      The Minister must, in writing, approve a nomination if:  [etc]

No where, other than reg 5.19(c), do the regulations refer to time of application or time of decision. Hence in administrative law terms when such specification is not made the Minister or the delegate must make the decision on the latest information available.

This requirement was aptly described by Mason J (as he then was) in the High Court decision of MINISTER FOR ABORIGINAL AFFAIRS v PEKO-WALLSEND  LTD. [1986] HCA 40; (1986) 162 CLR 24 :

20……In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.

[Emphasis added]

This equally applies to the Administrative Appeals Tribunal on review in relation to a nomination, further information being permitted based on facts in existence as at the time of decision by the tribunal.

This principle also applies to the nomination process in subclass 457 visas.