Ekanayake v Minister for Immigration and Multicultural Affairs

Case [2025] FedCFamC2G 558

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Ekanayake v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 558

File number(s): MLG 961 of 2020
Judgment of: JUDGE CORBETT
Date of judgment: 17 April 2025
Catchwords: MIGRATION - Employer Nomination (Permanent) (Class EN) (subclass 186) visas – Application for judicial review – Whether decision to refuse to grant the visas contained a jurisdictional error - Whether Tribunal obliged to reconsider a decision – Application interconnected with employer application for an extension of time – Applications heard concurrently – Application for judicial review dismissed.
Legislation:

Migration Act 1958 (Cth), s 362B(1A)(a)

Migration Regulations 1994 (Cth), Sch 2, cl 186.223, reg 5.19

Cases cited: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Division: Division 2 General Federal Law
Number of paragraphs: 32
Date of last submission/s: 4 March 2025
Date of hearing: 4 March 2025  
Place: Melbourne
Counsel for the Applicants Ms N Goonetillake
Solicitor for the Applicants Fairfields Lawyers
Counsel for the Respondents Mr W Newland
Solicitor for the Respondents Mills Oakley

ORDERS

MLG 961 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

SALIYA ANANDA BANDARA EKANAYAKE

First Applicant

KAMINI PIRANGIKA EKANAYAKE

Second Applicant

EWM MALINTHA VIHANGA BANDARA EKANAYAKE (and another named in the Schedule)

Third Applicant
AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE CORBETT

DATE OF ORDER:

17 APRIL 2025

THE COURT ORDERS THAT:

1.The name of the second respondent is amended to Administrative Review Tribunal;

2.The applicants have leave to amend the application for judicial review filed 20 March 2020 in the form of the document filed with the Court on 14 February 2025; and

3.The amended application for judicial review filed 14 February 2025 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE CORBETT

  1. The applicants seek judicial review of a decision of the second respondent (Tribunal) made 16 March 2020 to affirm a decision of the delegate of the first respondent (Minister) refusing to grant the applicants Employer Nomination (Permanent) (Class EN) (subclass 186) visas (visas).

  2. On 20 March 2020, the applicants filed an application for judicial review in this Court. On 14 February 2025 the applicants filed an amended application for judicial review.

  3. The hearing of the amended application for judicial review was heard at the same time as proceeding MLG892/2020 in which the first applicant’s employer, IT Consumable Solutions Pty Ltd (the Company) is applicant. In that proceeding, the Company seeks an extension of time to commence an application for…

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AGLC
Ekanayake v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 558
Case
[2025] FedCFamC2G 558
Decision Date

CaseChat Overview and Summary

The applicants, citizens of Sri Lanka, sought judicial review of the Administrative Review Tribunal's decision to affirm the Minister's refusal to grant them Employer Nomination (Permanent) (Class EN) (subclass 186) visas. The refusal was due to the rejection of the first applicant's employer nomination by the Minister, which was a requirement under cl 186.223 of Schedule 2 to the Regulations. The applicants' applications were heard concurrently with the employer's application for review of the nomination refusal, and the Minister opposed the judicial review application.

The key legal issues were whether the Tribunal was obliged to reconsider its decision given the alleged jurisdictional errors in the related nomination refusal decision, and whether the Tribunal's decision to refuse the visas contained a jurisdictional error. The applicants argued that the Tribunal had the power to revisit its decision upon being alerted to jurisdictional errors in the related nomination decision. The Minister contended that there was no obligation for the Tribunal to reconsider its decision, which was correctly made, and there was no jurisdictional error present.

The court considered the submissions and found that the decision to refuse the employer's nomination was correctly made and free from material jurisdictional error, as previously determined in proceeding MLG892/2020. The applicants did not meet the primary criteria for the visas due to the lack of an approved nomination. Since there was no material jurisdictional error in the Tribunal's decision, the Tribunal was not obliged to reconsider it. The court dismissed the amended application for judicial review and noted that the second respondent's name should be amended to reflect the Administrative Review Tribunal under the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth).

The final orders of the court were to amend the name of the second respondent to Administrative Review Tribunal, allow the applicants to amend their application for judicial review, and dismiss the amended application for judicial review filed on 14 February 2025. The court reserved the matter of costs for further consideration.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons expressed herein the amended application filed 14 February 2025 is dismissed.BACKGROUND The applicants are citizens of Sri Lanka. They arrived in Australia on 2 January 2014 (CB 40 and 59). The second applicant is the wife of the first applicant. The third and fourth applicants are the adult children of the first and second applicants (CB 44). On 26 June 2017, the applicants applied for the visas in the Temporary residence transition stream (CB 1–18). On 16 January 2018, a delegate of the Minister refused to grant the applicants the visas (CB 143–153). The delegate did so because the nomination by the first applicant’s employer was refused by the Minister on 23 November 2017. Therefore, the criteria in cl 186.223 to Sch 2 of the Regulations was not met. On 22 January 2018, the applicants applied to the Tribunal to review the delegate’s decision. (CB 154–6). Meanwhile the Company also applied to the Tribunal for review of the decision of the Minister to refuse the Company’s nomination. On 7 February 2020, the Tribunal affirmed the delegate’s decision to refuse the Company’s nomination (CB 201). The procedural history for that decision is set out in the reasons for judgment of this Court in proceeding MLG892/2020. On 25 February 2020, the Tribunal wrote to the solicitor for the applicants inviting the applicants to appear to give evidence and make arguments at a hearing before the Tribunal on 16 March 2020 (CB 235-6). On 12 March 2020, the solicitor for the applicants sought to postpone the hearing before the Tribunal (CB 237). The Tribunal refused the request for the postponement (CB 246-8). On 16 March 2020, the solicitor for the applicants informed the Tribunal that the applicants would not be appearing at the hearing that day and a further adjournment was sought (CB 249). On 16 March 2020, there was no appearance on behalf of the applicants at the hearing before the Tribunal (CB 251-4). On 17 March 2020, the Tribunal notified the applicants and their solicitor that the Tribunal affirmed the decision not to grant the applicants the visas (CB 284–291) (Decision).TRIBUNAL DECISION The Decision set out the primary criteria required for the visas, one of which was that the position for which the first applicant was nominated, was not the subject of an approved nomination in accordance with cl 186.223 to Sch 2 of the Regulations (CB 286 [5]). The Tribunal found that it was clear that the requirement of the Regulations could not be satisfied (CB 288-290 [19] and [29]). As the applicants did not appear before the Tribunal on the day scheduled for hearing, the Tribunal proceeded to make a decision under s 362B(1A)(a) of the Act without taking any further action to allow the applicants to appear before it (CB 289 [23]). On 20 March 2020, the applicants applied for judicial review of the Decision in this Court (CB 294–6).PROCEEDINGS IN THIS COURT The applicants were represented by the same solicitors and retained the same counsel as the Company in proceeding MLG892/2020.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 17 March 2020, the Tribunal notified the applicants and their solicitor that the Tribunal affirmed the decision not to grant the applicants the visas (CB 284–291) (Decision).TRIBUNAL DECISION The Decision set out the primary criteria required for the visas, one of which was that the position for which the first applicant was nominated, was not the subject of an approved nomination in accordance with cl 186.223 to Sch 2 of the Regulations (CB 286 [5]). The Tribunal found that it was clear that the requirement of the Regulations could not be satisfied (CB 288-290 [19] and [29]). As the applicants did not appear before the Tribunal on the day scheduled for hearing, the Tribunal proceeded to make a decision under s 362B(1A)(a) of the Act without taking any further action to allow the applicants to appear before it (CB 289 [23]). On 20 March 2020, the applicants applied for judicial review of the Decision in this Court (CB 294–6).PROCEEDINGS IN THIS COURT The applicants were represented by the same solicitors and retained the same counsel as the Company in proceeding MLG892/2020. A hearing of this application for judicial review took place in person at Melbourne on 4 March 2025. Ms Goonetillake of counsel appeared for the applicants. Mr Newland of counsel appeared for the Minister. The applicants and the Minister filed written outlines of submission common to both proceedings. In the amended application for judicial review filed 14 February 2025, the applicants identified the following amended grounds of review:Ground 1: The Tribunal erred in concluding that it could not re-determine the nomination review application that is now the subject of judicial review in proceedings MLG892/2020 (Nomination Review Decision).Particulars a. The Tribunal’s Nomination Review Decision dated 7 February 2020 was invalid by reason of one or more of the Grounds referred to in proceedings MLG892/2020.b. The Tribunal ought to have considered the Applicants’ application for review following a correct determination of the Nomination Review Decision.Further or in the alternative, the Tribunal’s Nomination Review Decision was infected with error and therefore should be quashed and determined in accordance with the law and the Applicants’ applications should be determined following a correct determination of the Nomination Review Decision.Particulars Relevant ground of review in respect of the Nomination Review Decision is set out in the Amended Application in proceedings MLG892/2020.SUBMISSIONS Counsel for the applicants relied on the submissions filed and made in proceeding MLG892/2020, which were to the effect that the Tribunal has the power to revisit the Decision if jurisdictional error is present. The Tribunal could and should have reconsidered the Decision when it was alerted to the jurisdictional errors in the related decision to refuse the Company’s nomination. The Minister submitted that there was no obligation on the Tribunal to reconsider a decision which the Tribunal considered to be correctly made. The decision to refuse the nomination was not infected with jurisdictional error. The Decision made by the Tribunal in relation to the applicants and the visas was correct because the primary criteria necessary for the grant of the visas was not present. The amended application for judicial review should be dismissed.CONSIDERATION

Ratio Decidendi

Legal Principle Established

The Minister submitted that there was no obligation on the Tribunal to reconsider a decision which the Tribunal considered to be correctly made. The decision to refuse the nomination was not infected with jurisdictional error. The Decision made by the Tribunal in relation to the applicants and the visas was correct because the primary criteria necessary for the grant of the visas was not present. The amended application for judicial review should be dismissed.CONSIDERATION For the reasons articulated in the reasons for judgment in proceeding MLG892/2020, the decision to refuse the nomination of the Company was correctly made and there was no material jurisdictional error in making that decision. Therefore, the applicants here did not meet the primary criteria required by the Regulations because there was no approved nomination for the position nominated. The Decision here was correctly made and there was no reason for the Tribunal to revisit or reconsider a decision that was soundly made. This was not a case like Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [51] and [53] where there was a clear or obvious error caused by the absence of a material jurisdictional fact that would permit the Tribunal to revisit the Decision. There was no material jurisdictional error made by the Tribunal and the amended application for judicial review is dismissed.OTHER MATTERS As a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to the Administrative Review Tribunal.COSTS This proceeding was heard at the same time as the application for judicial review in proceeding MLG892/2020 commenced by the Company. The same counsel and solicitors appeared in both matters and there were elements of duplication of submissions, evidence and general preparation. In these circumstances I will hear the parties on the appropriate disposition as to costs before making any costs order.ORDERS The name of the second respondent is amended to Administrative Review Tribunal. The applicants have leave to amend the application for judicial review filed 20 March 2020 in the form of the document filed with the Court on 14 February 2025. The amended application for judicial review filed 14 February 2025 be dismissed.