Hurmat-Ul-Ain v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 580
•28 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hurmat-Ul-Ain v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 580
File number(s): SYG 1735 of 2022 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 28 June 2024 Catchwords: MIGRATION – Practice and procedure – application for review of Registrar’s orders dismissing an application for judicial review of a decision made by the second respondent affirming the decision of a delegate of the first respondent not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa on the ground that the applicant does not have reasonable prospects of succeeding on her claim for judicial review – whether applicant does not have reasonable prospects of succeeding on her grounds of application – application for review dismissed and Registrar’s orders affirmed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 143(2)(b), 254(1), 256
Federal Court of Australia Act 1976 (Cth) s 31A
Migration Act 1958 (Cth) ss 57, 359A
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13, 21.01, 21.02, 21.04
Migration Regulations 1994 (Cth) reg 5.19, Sch 1, cl 1114C(3)(d), Sch 2, cls 187.111, 187.233
Cases cited: Conlan v Mladenis [2007] FCA 1129
Harris v Caladine [1991] HCA 9, at [27]; (1991) 172 CLR 84
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105
Division: General Number of paragraphs: 35 Date of hearing: 19 June 2024 Place: Sydney Counsel for the Applicant: Mr D Dober, by telephone Solicitor for the Applicant: King Lawyers And Consultant Solicitor for the First Respondent: Ms P Nirmaleswaran of Mills Oakley, by telephone ORDERS
SYG 1735 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FATIMA HURMAT-UL-AIN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
28 JUNE 2024
THE COURT ORDERS THAT:
1.The application for review of the Registrar’s orders made on 7 May 2024 is dismissed.
2.The orders the Registrar made on 7 May 2024 are affirmed.
3.Subject to order 4, the applicant pay the first respondent’s costs set in the amount of $4,189.38.
4.The parties have liberty to apply within 35 days after the date on which these orders are pronounced to vary or discharge order 3.
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
INTRODUCTION
The applicant applies for the review of an order made by a Registrar on 7 May 2024 pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) dismissing an application for judicial review of a decision made by the second respondent (Tribunal). By its decision, the Tribunal affirmed the decision of a delegate of the first respondent (Minister) not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa (Employer Nomination visa).
The Registrar made the order on 7 May 2024 pursuant to the powers delegated to Registrars under item 58 of the table to r 21.01 of the GFL Rules. The rule delegating the power was made pursuant to s 254(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFC Act). A consequence of the Registrar having made the order pursuant to delegated authority is that s 256 of the FCFC Act applies to the order the Registrar made, subsections (1) and (2) of which are as follows:
(1)A party to proceedings in which a delegate has exercised any of the powers of the Federal Circuit and Family Court of Australia (Division 2) under section 254 may:
(a) within the time prescribed by the Rules of Court; or
(b) within any further time allowed in accordance with the Rules of Court;
apply to the Court for review of that exercise of power.
(2)The Federal Circuit and Family Court of Australia (Division 2) may, on application under subsection (1) or on its own initiative, review an exercise of power by a delegate under section 254, and may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised.
The time for applying for a review of a Registrar’s orders has been prescribed by r 21.02 of the GFL Rules, which provides:
(1)For the purposes of subsection 256(1) of the Act, an application for review of the exercise of a power by a Registrar must be made within 7 days.
(2)The time prescribed by subrule (1) may be extended in a proceeding:
(a)by the Court or a Registrar on any terms that the Court or Registrar thinks fit; or
(b)with the consent of the parties to the proceeding.
The applicant lodged for filing her application for review 22 days after the Registrar made his order. Counsel for the applicant explained why the applicant failed to file the application within the required time. The Minister, however, who was represented by Ms Nirmaleswaran, did not object to my granting an extension. I therefore made an order pursuant to r 21.02(2)(a) of the GFL Rules that the time for filing the application for review be extended up to 11 June 2024, being the date on which the application was accepted for filing.[1]
[1] The application was lodged for filing on 5 June 2024.
Rule 21.04 of the GFL Rules deals with the procedure on review. Subrule 21.04(1) provides that “the review of an exercise of power by a Registrar must proceed by way of a hearing de novo”. The nature of a “hearing de novo” has been explained by a number of judges. In Caladine Dawson J said:[2]
An order made by a Registrar is reviewable by way of a hearing de novo. That means that the court reviewing the order begins afresh and exercises for itself any discretion exercised below by the Registrar. The parties commence the application again, subject to any restrictions in the rules upon the calling of evidence or provisions relating to the use before the court of evidence called before the Registrar. A hearing de novo involves the exercise of the original jurisdiction and “the informant or complainant starts again and has to make out his case and call his witnesses”.
[2] Harris v Caladine [1991] HCA 9, at [27]; (1991)172 CLR 84, at page 124
In Conlan v Mladenis, Sundberg J said: [3]
An applicant for review under [s 256(2)] is under no obligation to demonstrate error on the part of the Registrar, and does not need to establish that the Registrar’s exercise of discretion miscarried in the sense described in House v The King (1936) 55 CLR 499 at 505: Pattison v Hadjimouratis [2006] FCAFC 153 at [153]- [154]. The [judge to whom an application for review is made] must exercise any discretion on the material before him or her unaffected by how the Registrar may have exercised the discretion.
[3] Conlan v Mladenis [2007] FCA 1129, at [5]
In these reasons for judgment, therefore, I consider whether, as the Minister submits, the applicant does not have reasonable prospects of successfully prosecuting her application for judicial review of the Tribunal’s decision to affirm the delegate’s decision not to grant the applicant an Employer Nomination visa.
BACKGROUND
The applicant is a citizen of the Islamic Republic of Pakistan. On 21 February 2018 she applied for an Employer Nomination visa. The application identified the applicant’s “nominated occupation” as “Accountant (General)”.
To have been entitled to the grant of an Employer Nomination visa, the applicant had to satisfy the criteria specified in subclass 187 of Schedule 2 (Schedule 2) to the Migration Regulations 1994 (Cth) (Migration Regulations).[4] The criteria were predicated on a person (nominator) having applied to the Minister, pursuant to reg 5.19(1) of the Migration Regulations, “for approval of the nomination of a position in Australia”. As the Full Federal Court of Australia said in Singh v Minister for Immigration and Border Protection:[5]
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. . . . . [T]his contemplates an assessment by the Minister at a particular point in time.
[4] In these reasons for judgment I will refer to the relevant provisions of the Migration Regulations and of the Migration Act 1958 (Cth) as they applied on 21 February 2018, being the date on which the applicant applied for the Employer Nomination visa. For ease of expression, I will refer to the provisions in the present tense.
[5] Singh v Minister for Immigration and Border Protection [2017] FCAFC 105, at [89]
On 7 February 2018 a company, Hawkesbury Valley Meat Processors Pty Ltd (HVMP), applied pursuant to reg 5.19 of the Migration Regulations to nominate, in relation to the applicant, the occupation of “Accountant (General)”.[6]
[6] CB216
Among the criteria the applicant had to satisfy to be granted an Employer Nomination visa are those stated in cl 187.233 of Schedule 2, which are as follows:
(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
(aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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 made the nomination.
(3) The Minister has approved the nomination.
(4) The nomination has not subsequently been withdrawn.
(4A) Either:
(a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.
(5)The position is still available to the applicant.
(6)The application for the visa is made no more than 6 months after the Minister approved the nomination.
The “application for approval” to which cl 187.233(1)(a) refers is defined in cl 187.111 to mean an application under reg 5.19 of the Migration Regulations for approval of the nomination of a position. Paragraph 1114C(3)(d) of Schedule 1 to the Migration Regulations requires the making of a declaration in the application for an Employer Nomination visa that the position to which the application relates is either a position nominated under reg 5.19, or is in accordance with a labour agreement that is in effect, by an employer that is a party to the labour agreement.
In Singh v Minister for Immigration and Border Protection Mortimer J construed cl 187.223(1) of Schedule 2 as follows (emphasis added):[7]
In his written submissions, the Minister submits (at [37]):
Clause 187.233(1) of Schedule 2 imposes a single requirement, albeit one that is expressed in two paragraphs for ease of reference. Thus, the provision could have been expressed, and should be understood, as follows:
(1) The position to which the application relates is the position nominated in an application for approval that seeks to meet the requirements of subparagraph 5.19(4)(ii) [sic (4)(h)(ii)] … in relation to which the declaration mentioned in paragraph 1114C(3)(d) was made in the application for the grant of the visa.
That submission should be accepted. In my opinion the criterion imposes a single requirement, which is either fulfilled or not fulfilled at the time of decision. . . . 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 was in fact made, and about which the visa 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 the visa applicant’s declaration in the visa application is directed.
[7] Singh v Minister for Immigration and Border Protection [2017] FCAFC 105, [87]-[88] (Bromberg and Jagot JJ agreeing)
The applicant set out in a statement she provided to the Tribunal the circumstances in which HVMP came to apply for a nomination of a position in relation to her.[8] Those circumstances were as follows:
(a)At the end of September 2017, when looking for employment on Seek, a link took the applicant to the website of Goldman Pintex Management Pty Ltd (GPM); and the applicant applied for a job with GPM.
(b)The applicant was contacted by one of GPM’s employees who explained to her the process for applying for a Nominating Employer visa. The applicant signed a contract with GPM, and paid it $17,000. The applicant was shown what purports to be a document issued by the Minister’s Department approving HVMP to be a “Temporary Activities Sponsor”.
(c)Mr M, a director of HVMP, subsequently informed the applicant not to lodge an application with GPM, because he did not allow GPM to lodge applications on behalf of HVMP. Mr M said he would hire the applicant, and will apply for the nomination himself.
(d)In January 2018 HVMP advertised a position for an accountant. The applicant applied for the position, and she was invited for an interview. HVMP offered the applicant a position, subject to the approval of nomination, and the grant of the Employer Nomination visa.
[8] CB248
On 19 December 2017, the New South Wales Minister for Innovation and Better Regulation issued a media release in which he warned the public not to deal with GPM[9] The media release stated:
NSW Fair Trading has received 11 complaints about the company since it registered with the Australian Securities & Investments Commission in September 2016, Mr Kean said. “Choi and his associates claim they will find a business sponsor for clients and lodge a work visa application with the Department of Immigration and Border Protection.
[9] CB100
On 25 January 2019 a delegate of the Minister did not approve HVMP’s application for nomination.[10] The delegate found that HVMP failed to satisfy reg 5.19(4)(d)(i) of the Migration regulations, namely, that the applicant “will be employed on a full‑time basis in the position for at least 2 years”. The basis of that conclusion was the delegate’s noting that between 7 July 2017 and 29 May 2018, HVMP lodged 31 nomination applications (including the nomination application in relation to the applicant) “for various occupations incurring an additional total wages/salary expense of $1,830,000”;[11] and the financial information HVMP provided in support of the application for nomination could not support such a cost.
[10] CB214
[11] CB220
In a statement she provided to the Tribunal,[12] the applicant said that HVMP “and its director is of the view that [that] company never applied for 31 nominations”; and that the company director said that GPM had used HVMP’s approval as a “Temporary Activities Sponsor” “to apply for 31 false nomination[s] on behalf of HVMP and its directors and that the company and its directors never gave any consent or approval for 31 nominations”.[13]
[12] CB250
[13] CB 251
It appears that HVMP applied to the Tribunal for a review of the delegate’s decision not to approve the application for nomination in relation to the applicant; but on 9 February 2022 the Tribunal affirmed the delegate’s decision not to approve the application for nomination.[14] As Mortimer J noted in Singh, on an application for review it is open to the employer “to adduce new or further material in order to satisfy the Tribunal that the nomination should be approved”.[15] As Mortimer J further noted, however, the scheme for merits review of a decision not to approve an application for nomination “does not contemplate that an employer can file repeated nomination applications in relation to the same visa application and the same visa applicant”.[16]
[14] CB93
[15] Singh v Minister for Immigration and Border Protection [2017] FCAFC 105, [89]
[16] Singh v Minister for Immigration and Border Protection [2017] FCAFC 105, [89] (Bromber and Jagot JJ agreeing)
On 25 January 2019 the delegate sent a letter to the applicant’s agent pursuant to s 57 of the Migration Act 1958 (Cth) (Migration Act), in which the delegate informed the applicant’s agent that the nomination submitted to the Minister’s Department by HVMP had been refused, and that this meant that the applicant’s application for an Employer Nomination visa cannot be approved.[17] The letter informed the applicant that she had the option of withdrawing her application, noting that if the applicant did not do so within 28 days, her application for the Employer Nomination visa would be refused. The applicant did not respond to the letter; and, on 27 February 2019, the delegate refused to grant the applicant an Employer Nomination visa.[18] On 19 March 2019 the applicant applied to the Tribunal for a review of the delegate’s decision.
[17] CB55
[18] CB60
By a letter dated 9 September 2022 the Tribunal invited the applicant to attend a telephone hearing before the Tribunal on 8 November 2022. On 20 September 2022, the Tribunal issued a letter pursuant to s 359A of the Migration Act.[19] The letter informed the applicant that the Tribunal was aware of information it considered would, subject to the applicant’s comments or response, be the reason, or a part of the reason, for affirming the delegate’s decision not to grant the applicant a Nominating Employer visa. The information the Tribunal identified was a decision made by the Tribunal on 9 February 2022 affirming the delegate’s decision not to approve HVMP’s application for nomination. After noting that this information was relevant because cl 187.233(3) of Schedule 2 required that the Minister approve the nomination, the Tribunal invited the applicant to give comments or respond in writing.
[19] CB93
On 21 October 2022 the applicant responded by providing a statement to which I have already referred, and a number of documents. On 7 November 2022 the applicant provided a further written submission in which she addressed the Tribunal’s decision to affirm the delegate’s refusal to approve the nomination application.[20].
[20] CB257
TRIBUNAL’S REASONS
The Tribunal noted that cl 187.233 of Schedule 2 required that the position to which the applicant’s application for a Nominating Employer visa related be the subject of an application approval of a nomination in the Direct Entry stream, located in regional Australia; the position had to be one that was the subject of the declaration made as part of the applicant’s current application for a Nominating Employer visa; where the nomination is made after 1 July 2017, it must identify the applicant in relation to the position; the person who will employ the applicant is the person who made the nomination; the nomination has been approved, and the approval has not been withdrawn; the position is still available to the applicant; and the application for the Nominating Employer visa was made not more than six months after the nomination of the position was approved.
The Tribunal set out its ultimate findings as follows:[21]
[23] The Tribunal finds on the available information that there is no sponsorship application pending or under review either in the Tribunal or through the courts. The Tribunal is further satisfied that there is no present likelihood of a sponsorship application being made on behalf of the applicant by a prospective employer, and that she is presently unemployed, having just resigned from her most recent employment.
[24] The Tribunal finds therefore that the applicant cannot meet the criteria in the Regulations for the Direct Entry stream as the Minister has not approved the nomination application related to this visa application. The Tribunal further finds that it would be futile to defer finalisation of the application and this matter under review, where there is little likelihood of any nomination by an approved sponsor in the near future, and no available details or information in that regard as to the likelihood or timing of that occurring at some future date. The Tribunal finds accordingly that cl 187.233 is not met.
[21] CB279, [23], [24]
GROUNDS OF APPLICATION
In her application, the applicant relies on the following grounds of application (errors in original):
1.That the Tribunal failed to consider relevant evidence provided by the applicant in relation to cl.187.233 of Schedule 2 to Migration Regulations, and thereby incurred a jurisdictional error;
2. That the Tribunal failed to consider relevant evidence provided by the applicant to refer her matter to the Minister under compelling circumstances and thereby incurred a jurisdictional error.
This document was prepared when the applicant was not represented. The application for review, however, contains the following grounds of review:
1.The tribunal affirmed the decision of the original officer to reject the application for a 186 employer sponsored visa scheme on the grounds that the appellant failed to fulfill the pre-requisite for the grant of a substantial visa.
2. In doing so, the tribunal concluded that since the appellant failed to demonstrate that the employer was a genuine nominator and since the nominating employee had indulged in a ‘fraudulent scheme of things’ the appellant failed the basic requirement of grant of the visa.
3.The tribunal in reaching its decision certified in paragraph 24 that ‘ there is little likelihood of any nomination by an approved sponsor in the near future, and no available details or information in that regard as to the likelihood or timing of that occurring at the same time.’
4. In reaching the above stated decision, the tribunal had adjudicated on a mere speculation, that there shall be no further sponsors likely to nominate the appellant in her subsequent applications. In doing so, the tribunal had assumed the future facts of the matter and not got given proper and just weightage to the qualification and merits of the experience accumulated by the appellant.
5. By pre-supposing the future facts of the matter and not considering the properly acquired qualification and experience of the appellant the tribunal had carried a jurisdictional error and not given weightage to corroborative evidence in the proceeding that held material weightage in determining the matter.
6. The fact that an employee was willing to sponsor the appellant based on the merits of her qualification and experience certifies that an assumption by the tribunal that a future - employee shall not sponsor the appellant further confirms that the tribunal failed to consider corroborative evidence in the application.
7. The appellant circumstances had changed, and she has been sponsored by an employer confirming that the tribunal had made a substantial error of law in its exercising its judicial powers to determine the matter.
8. The minister failed to inculcate and exercise its discretionary power granted under s 351 of the Migration Act 1958 to substitute a decision of the Administrative Appeals Tribunal with one ‘more favourable to the applicant’. The matter constitutes substantial public interest, as innocent party ought to be protected by the fraudulent activity of an unrelated third party.
9. The appellant underwent dismissal of her visa without any direct fault of her own and presented submissions to support her innocence in the process, the tribunal’s punitive deliberation towards an innocent party solidifies an error of law in the proceeding
10. The Minister had the ability to exercise its discretionary power granted under s 351 of the Migration Act 1958 (Cth) as it was clear from the evidence that the applicant had at no fault of her own, to secure a nomination as per the requirement of cl. 187.233(3).
11. Deciding that the Tribunal is satisfied that there is no present likelihood of a sponsorship application being made on behalf of the prospective employer when the applicant did have sponsorship.
12. Deciding that it would be futile to defer finalisation of the application and its review when the applicant had a sponsorship from her employer.
13. Allowing an irrelevant issue to be considered, namely that the applicant is presently unemployed due to her resigning from her employment.
14. The applicant was denied procedural fairness by not being provided with adequate time to provide evidence of sponsorship and future employment.
PRINCIPLES
The question I must determine is whether the applicant “has no reasonable prospect of successfully prosecuting the proceeding or claim” within the meaning of r 13.13(a) of the GFL Rules.[22]
[22] The FCFC Act and the GFL Rules came into effect on 1 September 2021, replacing the FCC Act and the FCC Rules.
Paragraph (a) of r 13.13 of the GFL Rules expresses the substance of s143(2)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) which, in turn, is in substantially the same terms as s 31A(2)(b) of the Federal Court of Australia Act 1976 (Cth); and the principles governing the exercise of the power conferred by s 31A were set out by Perry J in Przybylowski v Australian Human Rights Commission(No 2):[23]
[23] Przybylowski v Australian Human Rights Commission(No 2) [2018] FCA 473, at [7]
The principles governing the application of s 31A are well established and can be summarised as follows:
(1)The respondent as the moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 (Cassimatis) at 271 [45] (Reeves J).
(2)With respect to the scope of s 31A, French CJ and Gummow J explained in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [22], that the section:
… will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the long-standing category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.
(3)Section 31A sets a lower threshold than the previous test for summary dismissal which required that the claim be “manifestly groundless” or “hopeless”: Spencer at [52]-[53] (Hayne, Crennan, Kiefel and Bell JJ). Nonetheless, the discretion must still be exercised with caution (Spencer at [24] (French CJ and Gummow J) and [60] (Hayne, Crennan, Kiefel and Bell JJ)).
(4)An assessment of whether a proceeding has no reasonable prospects of success for the purposes of s 31A involves the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 (Kowalski) at [28] (the Court).
(5) Consistently with this, Reeves J in Cassimatis explained at [46] that:
…the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.
(6)To illustrate the application of these principles, Reeves J explained at [47] that the moving party is more likely to succeed if she or he demonstrates that the applicant’s success relies on a question of fact that is fanciful, trifling, implausible, improbable, tenuous, or contradicted by all the available documents or evidence. Conversely, his Honour explained that, as a general principle, such an application is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined. The latter, in his Honour’s view, is more likely to be the case where the available materials include pleadings that raise factual disputes that can truly be described as significant, substantial, plausible or weighty.
PARTIES’ SUBMISSIONS
The grounds of application and the applicant’s submissions are principally directed to the finding the Tribunal made in paragraph 24 of its reasons for decision, namely, that “it would be futile to defer finalisation of the application and this matter under review, where there is little likelihood of any nomination by an approved sponsor in the near future, and no available details or information in that regard as to the likelihood or timing of that occurring at some future”. Counsel for the applicant submitted that the applicant will be contending that this finding was based on irrelevant or incorrect facts; and the basis of that submission would be the contention that the applicant could have obtained a new nomination and new employment. Counsel for the applicant further submitted that the applicant is currently employed, and there is a pending nomination application.
Ms Nirmaleswaran, who appeared for the Minister, submitted that it is a requirement of cl 187.223 that at the time of decision there must be an approved nomination; but the nomination that must be approved is that which is the subject of the application for the Employer Nomination visa. Ms Nirmaleswaran further submitted that it is impossible for that criterion to be satisfied, even now, because the company that had sponsored the applicant for the Employer Nomination visa, namely, HVMP, was deregistered on 28 November 2021.[24]
[24] Affidavit of M A Harradine made on 9 March 2023, [7]
DETERMINATION
Paragraphs 23 and 24 of the Tribunal’s reasons appear to be based on the view that it would have been open to the applicant to have supported her application for an Employer Nomination visa by a person other than by HVMP applying “for approval of the nomination of a position in Australia” pursuant to reg 5.19 of the Migration Regulations. The grounds of application are based on the same view; and the errors the grounds of application claim the Tribunal made relate to the Tribunal’s assessment of the applicant’s prospects of securing a different sponsor, that is, a person other than HVMP applying “for approval of the nomination of a position in Australia” pursuant to reg 5.19 of the Migration Regulations, to support her application for an Employer Nomination visa.
The view that it would have been open to the applicant to secure a different sponsor to support her application for an Employer Nomination visa, however, is unarguably incorrect; it is contrary to the construction the Full Federal Court in Singh gave to reg 5.19 of the Migration Regulations (emphasis added):[25]
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).
[25] Singh v Minister for Immigration and Border Protection [2017] FCAFC 105, at [90]
The grounds of application do not claim, and counsel for the applicant does not submit, that there was material before the Tribunal that ought reasonably to have suggested to it that there was some possibility that HVMP would be approved pursuant to reg 5.19 of the Migration Regulations. In those circumstances, the Tribunal’s alleged erroneous approach to determining whether there was a possibility that some person other than HVMP would be approved pursuant to reg 5.19 could have had no bearing on the fact that HVMP’s application pursuant to reg 5.19 of the Migration Act had been refused by a delegate and, on review, by the Tribunal; and that, given the Full Federal Court’s construction of reg 5.19 in Singh, it was not possible for the applicant to satisfy the criterion prescribed by cl 187.223(3) of Schedule 2, namely, that the “Minister has approved the nomination”.
The Tribunal made an error to the extent it assumed that it was open to the applicant to support her application for an Employer Nomination visa by a nomination made by a person other than HVMP. But the applicant does not have reasonable prospects of successfully resisting a submission that the error was not material.[26] In particular, the applicant does not have reasonable prospects of succeeding on a submission that, but for the Tribunal’s not proceeding on the erroneous view that the applicant could support her application for an Employer Nomination visa by a nomination made by a person other than HVMP, the decision the Tribunal made could realistically have been different. On the contrary, given that HVMP’s application for nomination had been refused by a delegate of the Minister and, on review, by the Tribunal, and for that reason the applicant could not satisfy the criterion in cl 187.223(3) of Schedule 2, it is beyond argument that the Tribunal would have made the decision it in fact made.
[26] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, at [14]
CONCLUSION AND DISPOSITION
The applicant does not have reasonable prospects of prosecuting her claims for relief. I therefore propose to dismiss her application for review and affirm the Registrar’s orders.
I propose to order that the applicant pay the Minister’s costs, and that those costs be set in the amount of $4,189.38, being the amount provided for by Item 2, Div 1, Part 2 of Schedule 2 to the GFL Rules. Given I did not hear submissions on costs, however, I will reserve to the parties liberty to apply within 35 days to vary or discharge the order for costs I will make.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 28 June 2024
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