Jalali v Minister for Immigration, Citizenship and Multicultural Affairs

Case •

[2022] FedCFamC2G 542

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Jalali v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 542  

File number(s): MLG 2817 of 2017
Judgment of: JUDGE EGAN
Date of judgment: 6 July 2022
Catchwords: MIGRATION – Success of visa application was dependent upon success of nomination application in different proceeding – where nomination application unsuccessful – no jurisdictional error established – application dismissed.  
Legislation: Migration Regulations 1994 (Cth), sch 2, cl 457.223 (4)(a)(i)
Cases cited: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Division: Division 2 General Federal Law
Number of paragraphs: 10
Date of last submission/s: 28 February 2022
Date of hearing: 26 October 2021
Place: Brisbane
Counsel for the Applicants: Ms G Costello QC
Solicitor for the Applicants: Oboodi Barristers & Solicitors Pty Ltd
Counsel for the First Respondent: Mr A Solomon-Bridge
Solicitor for the First Respondent: Sparke Helmore Lawyers
Second Respondent: No appearance save as to costs

ORDERS

MLG 2817 of 2017

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

HAMID REZA JALALI

First Applicant

ELNAZ TASHAKOR

Second Applicant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE EGAN

DATE OF ORDER:

6 JULY 2022

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship and Multicultural Affairs’.

2.The Originating Application for Review filed on 21 December 2017 be dismissed.

3.The First and Second Applicant pay the First Respondent’s costs of and incidental to the application for review, fixed in the amount of $5,000.00.

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 Egan

Introduction

  1. The male applicant is a citizen of Iran who applied for a Temporary Business Entry (Class UC) Visa on 16 February 2015. The female applicant applied for the visa as a member of the male applicant’s family unit.

  2. The success or failure of the application for the visa was dependent upon the success of a nomination application made by the male applicant’s sponsor, namely Arya Group Pty Ltd.

  3. The nomination application was refused by a delegate of the Minister. That decision was subsequently affirmed by the Administrative Appeals Tribunal (the Tribunal). A review of the decision of the Tribunal refusing the nomination application was dismissed by this Court by judgment handed down on 10 May 2022 in MLG 2743/2017.

  4. One of the criteria required to be satisfied under clause 457.223(4)(a)(i) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) in respect of any application for a visa of the type applied for by the male applicant was that at the time of the decision there was an approved nomination.

  5. There was no approved nomination at the time of the decision of the Tribunal. The Tribunal refused to grant the visa application on 19 December 2017.

  6. The applicants filed an Originating Application for Review in respect of the refusal of the visa application on 21 December 2017.

  7. The male applicant’s failure to satisfy the relevant criteria was fatal to the grant of the visa applications in respect of both applicants because none had satisfied the relevant criteria. The sole ground of review was that the Tribunal had erred by failing to await the outcome of review proceedings instituted on behalf of Arya Group Pty Ltd. As to that, even if the Tribunal was in error in failing to conduct a hearing in respect of the subject visa application until after the determination of proceedings in respect of the Arya Group Pty Ltd nomination application, in circumstances where the application for review filed on behalf of Arya Group Pty Ltd was unsuccessful, it could not be said that any failure on the part of the Tribunal in that regard was material.

  8. Any delay in hearing the visa application on the part of the Tribunal could not have realistically resulted in the Tribunal arriving at a different decision from the one which it did. [1] 

    [1]           Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45] – [46] per Bell,

  9. In circumstances where the applicants have failed to satisfy the relevant criteria, the applicants have failed to establish jurisdictional error on the part of the Tribunal.

  10. The Originating Application for Review is without merit and is dismissed.

  11. The Court will hear the parties as to costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       6 July 2022


            Gageler and Keane JJ.
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