Gondal v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2023] FedCFamC2G 23
Federal Circuit and Family Court of Australia
(DIVISION 2)
Gondal v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 23
File number(s): PEG 3 of 2022 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 24 January 2023 Catchwords: MIGRATION LAW – application for reinstatement – decision of the Administrative Appeals Tribunal – Regional Employer Nomination (Class RN) (subclass 187) visa – finding that reasonable explanation for failure to attend on previous occasion – but where substantive application has no reasonable prospects of success and remittal to Tribunal would be futile – where the applicant was not subject to an approved nomination – where Tribunal made the only decision available in the circumstances – application dismissed. Legislation: Migration Act 1958 (Cth), ss 359A, 359C, 360, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, rr 13.06, 13.13, 17.05
Migration Regulations 1994 (Cth) sch 2, cl 187.233
Cases cited: FBS18 v Minister for Home Affairs [2019] FCAFC 196
Gondal v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 749
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105
Division: Division 2 General Federal Law Number of paragraphs: 75 Date of last submission/s: 30 November 2022 Date of hearing: 30 November 2022 Place: Heard in Perth, delivered in Melbourne Solicitor for the Respondent: The Applicant appeared in person Solicitor for the Respondent: Mr L Dennis of Minter Ellison ORDERS
PEG 3 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUMTAZ AHMED GONDAL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
24 January 2023
THE COURT ORDERS THAT:
1.The applicant’s reinstatement application filed on 3 October 2022 be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
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
DEPUTY CHIEF JUDGE MERCURI:
Introduction
This is an application to set aside orders made on 6 September 2022 dismissing the applicant’s substantive application on the basis of his non-appearance at hearing. By this application, the applicant seeks the reinstatement of his substantive application.
The applicant’s substantive application seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 2 December 2021 to affirm a decision of a delegate of the then Minister for Home Affairs (‘the Minister’) to refuse to grant a Regional Employer Nomination (Class RN) (subclass 187) visa (‘subclass 187 visa’).
Factual background
The applicant is a citizen of Pakistan.
Application for subclass 187 visa on 5 August 2016
On 5 August 2016, the applicant lodged an application for a subclass 187 visa in the Direct Entry stream.[1] As part of his visa application, the applicant was nominated for the position of ‘Cook’ by his sponsoring employer, Minha Holdings Pty Ltd.
[1] Court book at page 25 and following.
Refusal of nomination on 18 April 2019
A delegate of the Minister refused to approve the nomination on 18 April 2019 on the basis that applicant was not the subject of an approved nomination as required by clause 187.233 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).[2]
[2] Court book at page 111.
In its decision record attached to its letter of 18 April 2019, the delegate set out the terms of clause 187.233 of Schedule 2 of the Migration Regulations, which relevantly provides:
(1) The position to which the application relates is the position:
(a) nominated in an application for approval that seeks to meet the requirements of:
(i) subparagraph 5.19(4)(h)(ii); or
(ii) subregulation 5.19(4) as in force before 1 July 2012; and
(b) in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2) The person who will employ the applicant is the person who was the nominator in the application for approval.
(3) The Minister has approved the nomination.
(4) The nomination has not subsequently been withdrawn.
(5) The position is still available to the applicant.
(6) The application for the visa is made not more than 6 months after the Minister approved the nomination.
In this instance, the delegate found that as the sponsor’s nomination was refused by the Department on 20 March 2019, the applicant did not meet the criteria in clause 187.233(3).[3]
[3] Court book at pages 115 to 117.
Applications for review at Tribunal on 2 April 2019 and 7 May 2019
On 2 April 2019, the sponsor, Minha Holdings Pty Ltd, sought a review of the delegate’s decision.[4] On 14 December 2020, the Tribunal determined that it did not have jurisdiction to deal with this review application on the basis that Minha Holdings Pty Ltd was deregistered on 18 April 2020.[5] As such, the Tribunal concluded that there was no longer a person who had standing to apply for or continue an application for review of the delegate’s decision.
[4] Court book at page 123.
[5] Affidavit of Mr Harry McLaurin affirmed and filed on 23 August 2022 at Annexure HM03.
The applicant also sought review of the delegate’s decision to the Tribunal on 7 May 2019.[6]
[6] Court book at pages 118 to 119.
On 31 August 2021, the Tribunal invited the applicant to a hearing by telephone, scheduled for 21 September 2021.[7]
[7] Court book at page 138 and following.
On 2 September 2021, the Tribunal sent a letter to the applicant pursuant to section 359A of the Migration Act 1958 (Cth) (‘the Act’) (‘section 359A letter’) inviting him to comment or respond to information.[8] In particular, the letter referred to the fact that the Tribunal had previously concluded on 14 December 2020, in respect of the application for review filed by Minha Holdings Pty Ltd, that it had no jurisdiction to hear the nomination review application.
[8] Court book at page 149 and following.
Furthermore, the letter put the applicant on notice that because it was a mandatory requirement of subclause 187.223(3) that there be an approved nomination in place, the absence of an approved nomination could be a reason for affirming the delegate’s decision. The applicant was invited to comment on this information in writing by 16 September 2021. [9]
[9] Court book at pages 149 to 150.
The applicant wrote to the Tribunal on 13 September 2021 seeking an adjournment of the hearing initially scheduled for 21 September 2021 citing health issues.[10]
[10] Court book at page 152.
The Tribunal responded on 20 September 2021 advising the applicant that the hearing initially scheduled for 21 September 2021 had been cancelled.[11] The letter indicated that the applicant had not yet provided a response to the Tribunal’s section 359A letter, nor had he sought an extension of time in which to do so. In circumstances where the deadline for providing a response had passed, the Tribunal confirmed that it would proceed to make a decision on the information currently available to it.
[11] Court book at page 161.
On 2 December 2021, the Tribunal ultimately proceeded to make a decision, affirming the delegate’s decision to refuse to grant the applicant a subclass 187 visa. The applicant was notified of this decision on 3 December 2021.[12]
[12] Court book at page 164.
Tribunal decision
The Tribunal’s decision record dated 2 December 2021, with respect of the applicant’s application for review of the delegate’s decision, is at pages 168 to 171 of the court book.
After setting out the relevant background, at paragraph [15], the Tribunal identifies the singular issue as being whether the applicant is subject to an approved nomination. At paragraphs [16] to [17], it sets out the requirements of clause 187.223 for the grant of a subclass 187 visa, including that the nomination has been approved and has not been subsequently withdrawn.
In this instance, the nomination application made by the sponsor was refused by the Department on 20 March 2019, and subsequently, the sponsor’s application for review at the Tribunal was refused in circumstances where it had determined that it lacked jurisdiction to consider that application.[13] In those circumstances, at paragraph [19], the Tribunal found that the nomination made by the applicant’s proposed employer had not been approved, and accordingly, the applicant did not meet the requirements of clause 187.223.
[13] Tribunal decision record dated 2 December 2021 at paragraph [18].
Therefore, at paragraph [22], the Tribunal affirmed the decision under review to not grant the applicant a subclass 187 visa.
Proceedings in this court
On 4 January 2022, the applicant filed his substantive application for judicial review of the Tribunal’s decision of 2 December 2021.
By its amended response, the Minister sought summary dismissal of the applicant’s substantive application pursuant to rule 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (‘the Rules’).[14]
[14] Amended Response filed 15 February 2022.
On 29 March 2022, orders were made by Registrar Van der Westhuizen listing the matter for hearing on a date to be advised. Relevantly, these orders included orders for the filing of a court book and written submissions, any amended application and additional evidence upon which the applicant sought to rely. The orders also provided for the respondent to file written submissions and any additional evidence upon which it would seek to rely prior to the hearing.
Hearing on 6 September 2022
The proceeding was ultimately listed for hearing on 6 September 2022 before Judge Kendall.
When the matter was called on for hearing on 6 September 2022, there was no appearance by the applicant. Accordingly, Judge Kendall made orders dismissing the application for non-appearance pursuant to rule 13.06(1)(c) of the Rules.[15]
[15] Orders of his Honour Judge Kendall dated 6 September 2022.
In his reasons for judgment, his Honour set out the background to this matter and the manner in which the parties were notified of the listing of this matter. [16] I do not propose to set that background out in these reasons.
[16] Gondal v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 749.
Application for reinstatement filed on 3 October 2022
On 3 October 2022, the applicant filed an interlocutory application seeking the re-instatement of his application pursuant to rule 17.05(2)(a) of the Rules,[17] accompanied by an affidavit in support. At paragraphs [18] to [20] of that affidavit, the applicant relevantly said:
18.After that, I further applied for review of my application in the Federal Circuit Court where I tried presenting my documents and evidence stating that I deserve grant of the visa.
19.My application was unsuccessful in Federal Circuit Court, and I was notified on 06th of Sep 2022.
20.I believe that the Department of Home Affairs and Administrative Appeals Tribunal followed by Federal Circuit Court have not accessed the circumstances which lead to refusal of my visa application, and thus assessment of my application possess judicial error.
[17] Applicant’s Application in a Proceeding filed on 3 October 2022.
The balance of the applicant’s affidavit of 3 October 2022 relates to his move to Australia and his visa application before the delegate and the Tribunal.
On 10 October 2022, the court made orders that the applicant file and serve an outline of submissions and any evidence in relation to the reinstatement application and for the Minister to file any responding material.[18] The applicant has not filed any such material.
[18] Orders of his Honour Judge Kendall dated 10 October 2022.
Hearing on 30 November 2022 and request for adjournment
When the matter was called on for hearing before me, the applicant represented himself and sought an adjournment. When asked to explain the basis of this request, the applicant stated that he needed the opportunity to obtain legal advice. He apologised for not attending on the last occasion but said that he had been suffering from the anxiety associated with this matter.
The applicant indicated that he had sent through a bundle of material to chambers in support of his request for an adjournment. Those documents were tendered and marked as Exhibit A.
In relation to the applicant’s request for more time to seek legal representation, he stated that he had land in Pakistan that he wished to sell. He indicated that once he was able to do that, he would be able to afford legal representation. The applicant also said that if these proceedings were not adjourned as requested, he would not be able to go to Pakistan to attend to the sale of the land and return to Australia.
The applicant also stated that since being in Australia, he has met and married a woman here with whom he has had a child and with whom he is raising her first born as his own. He says that he has not been able to return to Pakistan earlier because of his family responsibilities. In substance, the applicant sought further time to attend to this before this matter was determined.
The Minister opposed the application for an adjournment, primarily on the basis that the substantive application lacks merit and therefore there would be no utility in providing the applicant further time.
Having heard the submissions of the parties, I refused to grant an adjournment as sought. This matter has already been listed on two occasions. The applicant’s application was initially filed in January 2022. The applicant has had over 11 months to seek and obtain legal advice. Having regard to the nature of the application and the submissions made, I was not satisfied that it is in the interests of justice for an adjournment to be granted.
Reinstatement principles
Having refused the adjournment, I turn now to consider the applicant’s application for reinstatement pursuant to rule 17.05(2)(a) of the Rules.
The discretion to reinstate an application is a broad one, but the following factors have consistently been referred to as relevant to determining whether to exercise that discretion in any given case:
(a)whether there is a reasonable excuse for the party’s absence from the hearing;
(b)whether, and if so what, prejudice would flow to the other party from the reinstatement; and
(a)whether the party has a reasonably arguable prospect of success on the substantive application.[19]
[19] MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (‘MZYEZ’) at paragraph [7].
As noted in MZYEZ, even where there is a reasonable explanation for the delay, the court may not grant the request for reinstatement if there is little or no prospect of the application succeeding on the substantive case.[20]
[20] MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at paragraph [8].
The Full Court of the Federal Court in FBS18 v Minister for Home Affairs [2019] FCAFC 196 at paragraph [55] noted that the three factors identified above in paragraph 36 are no more than guidelines on the exercise of the discretion in rule 17.05(2)(a) and not a checklist per se.
The Minister opposes the reinstatement application.
In essence, the Minister submits that whilst there is no prejudice that would be suffered if the substantive application were reinstated, the application ought be refused on the grounds that:
(a)the applicant has not provided evidence as to the reason for the failure to appear on the last occasion; and
(b)in any event, the applicant’s substantive application has no reasonable prospects of success, such that the substantive application ought not be reinstated.[21]
[21] Minister’s Outline of Submissions filed on 8 November 2022 at paragraphs [9] to [20].
Reasonable explanation for failure to attend on last occasion
At the hearing before me, the applicant appeared on his own behalf. After explaining to him the role of this court in a judicial review application, and the factors that the court had to consider in determining whether to reinstate his substantive application, he was invited to explain why he did not attend on the last occasion, as well as the basis he says that his substantive application has reasonable prospects of success.
The applicant relied upon the documents at Exhibit A to explain the circumstances that he found himself in when the matter was previously listed. Relevantly, the applicant said that his mother had recently passed away. A copy of the death certificate was included in Exhibit A, which I understand relates to his mother and indicates that she passed away on 12 August 2022.
Exhibit A also contains:
(a)a marriage certificate which records a marriage between the applicant and a Ms Sandra Knight;
(b)information from West Morley Primary School dated 15 August 2022 indicating that the applicant assists with the care of Brody-Lee Knight, including by taking him to and from school;
(c)a birth certificate in respect of the birth of Sarah Rose Knight on 27 December 2019 which nominates the applicant and Ms Sandra Knight as the parents; and
(d)a letter from the Alpine Medical Centre dated 13 September 2021.
Relevantly, the letter from the Alpine Medical Centre refers to various medical conditions that the applicant was suffering from at the time and in respect of which he had been seeking treatment.
These documents were not produced by the applicant in a proper form insofar as they were not annexed to an affidavit. The Minister did not object to the court receiving these documents into evidence. However, the Minister submitted that these documents do not explain the applicant’s failure to attend the hearing listed on 6 September 2022.
I accept that they do not specifically address his fitness or otherwise to attend the hearing on 6 September 2022. However, they do provide some context for the circumstances in which the applicant found himself at or about the time of the last hearing.
For the purposes of this application, I am prepared to accept that in late August to early September 2022 the applicant was dealing with the death of his mother, ongoing anxiety and depression and that this provided a reasonable explanation for his failure to attend the hearing on 6 September 2022.
Reasonable prospects of success on substantive application
However, for the following reasons, I am not satisfied that the substantive application filed by the applicant has reasonable prospects of success such the court ought to exercise its discretion to reinstate that application.
In considering whether the applicant has arguable prospects of success, the court must consider the applicant’s substantive application. The applicant’s application for judicial review contains the following 10 paragraphs under the heading ‘Grounds of application’:
1.My employer lodged a nomination application for subclass 187 visa nominating me for the position of Cook ANZSCO 351411, and I applied for a Regional Employer Nomination (subclass 187) as well on 05th Aug 2016.
2.The Department of Home Affairs refused my application for subclass 187 visa on the 18th of April 2019 under section 65 of the Migration Act 1958. The case officer found that I don’t meet clause 187.233 in schedule 2 of the Migration Regulations.
3.The associated Nomination application was refused as the delegate believed that the nomination didn’t satisfy criteria for grant.
4.The delegate believed that the position could be filled by a local Australian Citizen or Australian Permanent Resident.
5.The sponsor provided evidence supporting that the business could not find a suitable person for the role.
6.The Department has not demonstrated that on what grounds the support evidence has been neglected in the assessment of the application, nor has it provided with any evidence that the position can be filled with a suitable Australian Permanent Resident or Citizen.
7.I believe that the delegate of Minister has, by ignoring relevant information and material in assessment decision maker has reached a mistaken conclusion.
8.The application was refused on 18th of April 2019 almost three years after the lodgement.
9.I applied for a review of the application with the Migration and Refugee Division of Administrative Appeals Tribunal.
10.The AAT also ignored the information provided in written submission as well as hearing and affirmed the decision.[22]
[22] Initiating Application filed on 7 January 2022.
Without in any way being critical of the applicant who has represented himself in these proceedings, the above grounds are not set out in a way which readily identifies the grounds of judicial review.
In the Minister’s written submissions, filed in support of the application for summary dismissal, the Minister relevantly identified the following four grounds of review as capturing the essence of the contentions put forward by the applicant in his application:
(a)Ground 1 – The delegate assessing Minha’s application [being the applicant’s employer nominator] made an error of law or reached the wrong conclusion in refusing the nomination.
(b)Ground 2 – The delegate fell into jurisdictional error by taking an unreasonable amount of time to make a decision on the applicant’s application. This unreasonable amount of time adversely impacted the applicant because he ‘met the requirements for the grant of a visa for almost 3 years’.
(c)Ground 3 – Alternatively, the Tribunal erred by failing to consider the unreasonable delay of the delegate as the basis for a favourable decision.
(d)Ground 4 – The Tribunal failed to consider relevant evidence before it which assisted the applicant’s case.[23]
[23] Minister’s Outline of Submission filed on 23 August 2022 at paragraph [31].
I agree that these grounds appropriately capture the essence of the applicant’s contentions and will deal with the applicant’s contentions by reference to these grounds.
It is submitted for the Minister that these grounds have no reasonable prospects of success.
Ground 1 – Delegate made error of law in relation to sponsor’s application
To the extent that the applicant takes issue with the delegate’s decision to refuse the proposed nomination, the court has no jurisdiction to review that decision by virtue of section 476(2)(a) of the Act. Consequently, to the extent that the applicant, by his application to this court, takes issue with the decision of the delegate in relation to the nomination decision, that part of the application has no real prospects of success.
Ground 2 – Delegate took unreasonable amount of time to make decision
Similarly, to the extent that the applicant takes issue with the delay of the delegate in making its decision to refuse the visa, again, such a decision is not reviewable by this court by virtue of section 476(2)(a) of the Act and therefore that aspect of the applicant’s claim also has no reasonable prospects of success.
In addition, the applicant was asked by me to clarify why he said that the delay in the delegate making a decision about the sponsor amounts to a jurisdictional error. He said that when he initially applied for the visa, he understood that his employer was an approved sponsor. He said that had he been told that his sponsor was in fact not an approved sponsor earlier, he could have taken steps to obtain another sponsor.
I understand by this that the applicant meant that the fact that the Department had delayed its decision had resulted in prejudice to his ability to obtain another sponsor. Leaving aside the question of whether this position is correct, or indeed whether the court has the power to entertain such an argument, even if it did, that would not impact on the merits of the substantive application before this court.
To the extent that the applicant argues that had the delegate not taken so long to make its decision, the applicant may have had the opportunity to seek another sponsor, even if that is accepted, that does not assist the applicant before this court. The decision which is the subject of this review application is the decision to refuse the applicant a visa.
Therefore, this aspect of the applicant’s claim would not have reasonable prospects of success.
Ground 3 – Tribunal erred in not considering delegate’s delay
To the extent that the applicant claims that the Tribunal erred in failing to consider the delay in the delegate’s decision making, it is submitted for the first respondent that such a complaint misunderstands the role of the Tribunal. There is force to this submission, which I accept.
In any event, as indicated, at the heart of the applicant’s submission is that if the delegate had made its decision in a more timely manner, the applicant could have sought a different sponsor to support his application for a visa.
Whilst I can understand the frustration that the applicant feels, this is not a proper ground of judicial review. The issue before the Tribunal was whether the applicant met the requirements for the visa, one of which was that he was subject to a valid approved nomination. At no stage was he subject to an approved nomination. At the time the Tribunal determined his application, the nomination had been refused and the application for merits review of that decision had been found to lack jurisdiction.
This aspect of the applicant’s claim therefore has no reasonable prospects of success.
Ground 4 – Tribunal failed to consider relevant evidence
Finally to the extent that the applicant suggests that his evidence and submissions to the Tribunal were not considered, it is not clear what submissions and evidence the applicant refers to. This ground seems to rise no higher than seeking impermissible merits review.
Moreover, I note that the applicant was invited to comment on certain adverse information set out in the section 359A letter but did not do so, nor did he seek an extension of time within which to respond to that letter.
Relevantly, section 359A(1) of the Act requires the Tribunal to:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
Section 359C of the Act provides that if the applicant fails to comment or respond to an invitation under section 359A within the timeframe provided, the Tribunal may make a decision on the review without seeking to obtain any further information from the applicant.
Moreover, section 360 provides that in the event that the applicant fails to respond to a section 359A invitation, they will lose any entitlement to appear at the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Ultimately, the key issue in this matter is whether, by reference to the reinstatement application or the Minister’s application for summary dismissal, the applicant has reasonable prospects of success on the substantive application.
The applicant’s substantive application takes issue with the decision of the Tribunal to refuse him a visa. That refusal was based on the fact that the nomination upon with the visa was based was not an approved nomination. As such, the Tribunal could not have come to any other decision as the requirements of clause 187.223 were not met.
Futility
Even if there was some error in the way in which the Tribunal considered the applicant’s application for review, it would ultimately be futile to remit the matter to the Tribunal.
Subclause 187.233(3) of Schedule 2 of the Regulations requires the applicant to have, at the time of decision, an approved nomination. As noted by Mortimer J (with whom Jagot and Bromberg JJ agreed) in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 at paragraph [88] and following:
88.… In my opinion the criterion imposes a single requirement, which is either fulfilled or not fulfilled at the time of decision. At the time of the delegate’s decision the employer nomination from Harrico had been refused by the Minister. The words in cl 187.233 ‘position nominated in an application for approval that seeks to meet the requirements of’ reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which is in fact made, and about which the applicant made the required declaration in the visa application. The ‘position’ referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances. The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that a visa applicant’s declaration in the visa application is directed.
89.The structure of reg 5.19 contemplates … that the Minister is obliged to either accept or reject the nomination, depending on whether the matters in the sub-regulation are satisfied. Again, this contemplates an assessment by the Minister at a particular point in time. Thereafter, the only variation to this assessment contemplated by the scheme is review by (now) the Administrative Appeals Tribunal. On merits review there is an opportunity for an employer to adduce new or further material in order to satisfy the Tribunal that the nomination should be approved. It is in this way that the ‘time of decision’ criterion can operate on merits review, as described by the Full Court in Singh at [28] referring to Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 … at [24] – [27]. This is a mechanism the scheme contemplates to alter an unsuccessful nomination. It does not contemplate that an employer can file repeated nomination applications in relation to the same visa application and the same visa applicant.
90.The identification of this as a criterion for the validity of a visa application is important in the scheme. … An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a ‘once off’ process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).
For similar reasons here, in circumstances where the nomination was not approved, even if this matter were remitted back to the Tribunal, it would be required to make the same decision, namely that the applicant did not meet the requirements of clause 187.233(1). He cannot cure that defect in relation to this application.
Conclusion
For each of these reason, the substantive application having no reasonable prospects of success, I am satisfied that it is not appropriate to order the reinstatement of the applicant’s application.
In coming to this conclusion, I wish to make it clear that in no way do I seek to understate the difficulties that the applicant has alluded to in the course of his submissions.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Deputy Associate:
Dated: 24 January 2023
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