Kamal v Minister for Immigration - [2019] FCCA 2845

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAMAL & ORS v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2845

Catchwords:
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visas – decision of the Administrative Appeals Tribunal – where the applicants were not the subject of an approved nomination – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), pt.187, cl.187.233 of sch.2

Cases cited:

AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193
Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294

Singh v Minister for Immigration & Border Protection (2017) 253 FCR 267

SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

First Applicant:

MUHAMMAD ASIM KAMAL

Second Applicant:

ANZAH ASIM KAMAL

Third Applicant:

ANUM ASIM

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 152 of 2019

Judgment of:

Judge Kendall

Hearing date:

4 October 2019

Date of Last Submission:

4 October 2019

Delivered at:

Perth

Delivered on:

4 October 2019

REPRESENTATION

Applicants:

The first applicant appeared in person and on behalf of the second applicant and third applicant

Counsel for the First Respondent:

Ms S Anicic

Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application be dismissed.
The first applicant and third applicant pay the first respondent’s costs fixed in the sum of $4,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 152 of 2019

MUHAMMAD ASIM KAMAL

First Applicant

ANZAH ASIM KAMAL

Second Applicant

ANUM ASIM

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex-tempore; Revised from transcript)

Introduction

By application filed in this Court on 24 April 2019, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 2 April 2019.
The Tribunal’s decision affirmed a decision of the first respondent (the “Minister”) not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visas (the “visa”).
The application is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain relief from this Court, the applicants must satisfy the Court the Tribunal has fallen into a jurisdictional error.
The applicants appeared without legal assistance in this court on 4 October 2019. The first applicant appeared on behalf of the second applicant and third applicant.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Kamal v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FCCA 2845
Decision Date: 4 October 2019

CaseChat Overview and Summary

Kamal and others (the applicants) sought judicial review of a decision made by the Administrative Appeals Tribunal concerning their applications for Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visas. The Minister for Immigration (the respondent) was the opposing party.

The central legal issue before the Federal Court was whether the Administrative Appeals Tribunal had committed a jurisdictional error in its decision regarding the applicants' visa applications. Specifically, the court had to determine if the applicants were entitled to have their visa applications considered on the merits, notwithstanding that they were not the subject of an approved nomination.

Justice Kendall found that the legislative framework for the Subclass 187 visa requires an approved nomination as a prerequisite for the grant of the visa. As the applicants did not have an approved nomination, the Tribunal lacked the power to grant the visa. Consequently, the Tribunal's decision not to grant the visa did not constitute a jurisdictional error. The application for judicial review was therefore dismissed.

Orders