Kaur v Minister for Immigration
[2020] FCCA 3210
•26 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3210 |
| Catchwords: MIGRATION – Training and research visa – visa abolished in 2016 – where delegate finds the applicant is not a genuine entrant for temporary stay in Australia – where sponsor’s application for approval of nomination is refused – where sponsor does not seek review of refusal decision – where applicant seeks review of delegate’s decision – where Tribunal decides application on basis that at the time of decision there was not in existence an approved nomination – where no other ground shown as to why decision affected by error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s. 65 Migration Amendment (Temporary Activity Visas) Regulations 2016, reg. 2, cll 47, 124 |
| Cases cited: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1996) 162 CLR 24 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 |
| First Applicant: | NAVDEEP KAUR |
| Second Applicant: | AJARGROOP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINSTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 917 of 2017 |
| Judgment of: | Judge A. Kelly |
| Hearing date: | 20 November 2020 |
| Date of Last Submission: | 20 November 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 26 November 2020 |
REPRESENTATION
| First Applicant: | In person |
| Second Applicant: | No appearance |
| Solicitor advocate for the Respondents: | Mr J. Simpson |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the court via audio and video link.
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application dated 4 May 2017 be dismissed.
The applicants pay the costs of the first respondent as agreed or assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 917 of 2017
| NAVDEEP KAUR |
First Applicant
| AJARGROOP SINGH |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 4 May 2017, the applicants seek judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 3 May 2017 affirming a decision of a delegate of the first respondent (Minister) refusing to grant her a Training and Research visa (402) (visa) pursuant to s 65 of the Migration Act 1958 (Act).
The application should be dismissed. In summary, no jurisdictional error was disclosed in the Tribunal’s conclusion that, as there was no approval for a nomination by a sponsor for the applicant’s position at the time of decision, the criteria for the visa could not be met and for that reason, the application must be refused.
Background
The background to the application is common ground.
The first applicant (applicant), a female Indian citizen aged 31 years, applied for the visa the subject of this proceeding on 8 September 2015. The second applicant, a male Indian citizen aged 29 years, is the applicant’s husband and was included in her application as a member of the family unit of a person who met the primary visa criteria.
By letter dated 10 October 2013, the Baxter Institute confirmed that the applicant commenced study for a Diploma of Dental Technology on 3 November 2011 and completed her diploma on 24 September 2013.The visa application indicated that the applicant already worked as a dental technician preparing moulds for apparatus such as mouthguards and other specialist tasks required of dental technicians. It was the applicant’s case that the present visa application concerned study for the development of additional specialist skills.
On 10 March 2014, the applicant was granted a Temporary Graduate (class VC) (subclass 485) visa which allowed the applicants multiple entries into Australia until 10 September 2015.
On 29 September 2014, Logan Dental Laboratory (Logan), a practice conducted in Derrimut, Victoria, issued a letter confirming the applicant’s employment as a dental technician between 1 March 2013 and 27 September 2014.
On 31 August 2015, Logan, in its capacity as host organisation, wrote to McKkr’s Pty Ltd (McKkr’s) stating ‘[a]s an owner and senior technician of the Laboratory, I will be training Naveep kaur (sic) as dental technician where she will do her training on 402 visa in Logan Dental Laboratory. She will be working as full time employee. . .”
On 31 August 2015, an agreement styled Agreement between McKkr’s, Host Organisation and Trainee 4402 Occupational Trainee Stream was made between Arthanary Loganathan trading as Logan and McKkr’s. The agreement was expressed to be made for the applicant as trainee. The agreement provided for the responsibilities of each of the host organisation, McKkr’s and the applicant, and had been signed by each of those three parties. It was signed on 2 September 2015. Relevantly, the agreement identified that the responsibility of the host organisation was to provide the trainee with the position for the occupation of a dental technician with tasks and duties aligned with ANZ code 411213. Although it had not been drafted in terms which identified the applicant as being a party, the agreement provided for the trainee’s responsibilities including that she would hold a valid Australian visa deemed appropriate for her training throughout the period of her workplace training with the host organisation. The responsibilities of McKkr’s were also described and were essentially supervisory, including that it would provide certain training modules. To that end, McKkr’s issued a training plan which described a series of modules which were arranged to provide training in three phases over a total period of 52 weeks.
As noted above, on 8 September 2015 the applicant applied for the visa. The visa related to an occupational trainee position as a dental technician, for which the applicant had been nominated by McKkr’s as her sponsor. Separately, an application was made by McKkr’s as sponsor for approval of the applicant’s nominated position.
Delegate’s decision
On 25 May 2016, the Department, via its delegate, notified the applicants of the refusal of the application. The decisional record of the delegate provided reasons why it had been concluded that the applicant did not satisfy the provisions of the Migration Regulations 1994 (Cth).
Clause 402.214 of the regulations provides that:
The applicant genuinely intends to stay temporarily in Australia to carry out the occupation, program or activity for which the visa is granted, having regard to;
(a)whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and
(b)whether the applicant intends to comply with conditions to which the Subclass 402 visa would be subject; and
(c)any other relevant matter.
The delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia to carry out the training program for which her visa had been granted and so was not satisfied that the requirements of cl 402.214 of the regulations had been met. The substantive reasoning which underpinned that conclusion included that:
a)in the period, 2011 – 2013, the applicant had undertaken and completed a diploma of dental technology at the Baxter Institute;
b)in the period, April to September 2013, the applicant had worked part-time as a dental technician for Logan (the host organisation);
c)in the period, October 2013 to September 2014, the applicant had worked full-time as a dental technician for Logan;
d)in the period, July 2015 to date, the applicant had continued to work full-time as a dental technician for Logan;
e)the applicant already had the existing skills and experience and did not require further training to be a dental technician.
In all the circumstances, entry into the agreement on 2 September 2015 was considered by the delegate “to have been created in order to fulfil the applicants need to continue to work with the host organisation and there is no genuine intention to undergo occupational training.”
It was common ground that a delegate had made a decision refusing McKkr’s nomination of the applicant for a training program with Logan and that no application for review of that decision has been made.
On 9 June 2016, the applicants applied to the Tribunal for review of the delegate’s decision refusing their visa applications.
On 29 March 2017, the applicants were invited by the Tribunal to attend the hearing scheduled to occur on 28 April 2017. On the same date, the applicant sent an email to the Tribunal in which she sought a ‘prepone’ of the hearing on the stated basis that she would be ‘travelling interstate in that week that is why I am requesting to prepone the date’. The Tribunal denied the request on 30 March 2017 and it was suggested that the hearing be conducted via teleconference. By return email of same day, the applicant indicated that ‘I don’t want to attend the MRT hearing over the phone because I really want to attend the hearing’. Notably, the applicant stated that if her request was not granted she would make arrangements to attend the hearing on the scheduled date.
Tribunal’s decision
On 28 April 2017, the Tribunal conducted a hearing which was attended by the applicant and her husband and on 3 May 2017, it notified the applicants of its decision to affirm that of the delegate.
In affirming the decision to refuse the visa, the Tribunal provided a statement of reasons for doing so (Reasons). In substance, the Tribunal affirmed the delegate’s decision on an alternative basis, being that at the time of decision the applicant did not meet criteria for the visa under cl 402.221(1)(a)(i)-(ii) of Sch 2 to the regulations. Those criteria required, relevantly, that the applicant was identified in a nomination by a sponsor and which nomination met the criteria in reg 2.72I. Regulation 2.72I(5) prescribed certain criteria for a nominated training position for the improvement of occupational skills. The Tribunal reasoned as follows:
a)the original issue in the case had been whether the applicant met the requirements of cl 402.214 of the regulations, which required that she genuinely intended to stay temporarily in Australia to carry out the occupation, program or activity for which the subclass 402 visa is granted: [15];
b)since the decision was made on 25 September 2016, a new issue had arisen by virtual of legislative amendments made to the Occupational Training visa program which abolished the subclass 402 visa category from 19 November 2016 and repealed reg 2.72I of the Regulations from the same date. [15];
c)as a result of those changes, the applicant did not meet another mandatory requirement for the grant of a subclass 402 visa, being cl 402.221: [16];
d)the Tribunal was satisfied that although it had been intended that the applicant undertake a program of training and a nomination of the applicant for a training program had been made by McKkr’s, there was no record of that organisation seeking review of the decision to refuse its nomination application. The Tribunal found that the applicant was not the subject of an approved nomination that satisfied cl 402.221 (1)(a) or (b): [21];
e)further, cl 402.221(1)(a) of Sch 2 to the regulations required that any nomination of the applicant by a sponsor met r 2.72I of the regulations. That regulation was repealed on 19 November 2016 as part of a series of legislative amendments to the Regulations which also saw the abolition of subclass 402 visas.[1] The effect of these amendments was that all legacy visas and legacy sponsor categories were closed with effect from 19 November 2016. Further, from that date, no new nominations for subclasses 401, 402 (Occupational Trainee stream) or 420 visas could be made, including by legacy sponsors and including for legacy visa applications which had been made before 19 November 2016: [22];
f)as the Tribunal found that the applicant did not meet cl.402.221, it was unnecessary for the Tribunal to consider whether she met cl 402.214. It was obliged to affirm the decision under review not to grant her a subclass 402 visa due to her failure to meet one of the mandatory visa criteria. [23];
g)the applicant had only sought to satisfy the criteria for a subclass 402 visa in the Occupational Trainee stream. No claims had been made in respect of the other visa streams.
[1] See Migration Amendment (Temporary Activity Visas) Regulations 2016.
The Tribunal found that as the requirements that must be met by a person seeking the visa in the Occupational Trainee stream had not been met, the decision under review must be affirmed. The Tribunal also affirmed the decision to refuse the second applicant a visa, as he did not meet the secondary visa criteria to be a member of the family unit of a person who held a subclass 402 visa and there was no evidence that he met the primary visa criteria in his own right. [24]-[25].
Procedural history
On 4 May 2017, the applicant filed an application for judicial review of the Tribunal’s decision together with an affidavit affirmed by the applicant to which she exhibited a copy of the Reason and a substantial number of other documents.[2] Otherwise, the applicant’s affidavit adduced no further evidence.
[2] The further documents included: a marriage certificate; a PTE academic report; what appeared to be a certificate of completion of a Diploma of Dental Technology; a letter dated 10 October 2013 from Baxter Institute affirming the first applicant’s commencement and completion date; a record of academic results; a letter from the CEO and manager of Logan Dental Laboratory dated 29 September 2014; a letter dated 31 August 2015 with the subject title Evidence of Financial Support signed by the first applicant; a letter of ‘Emplyment’ (sic) dated 29 August 2015; a letter dated 31 August 2015 addressed to McKKR’s Pty Ltd, subject title: ‘Capability to conduct the training for 402 visa’; and ‘Agreement between McKkr’s, Host Organisation and Trainee for 402 Occupational Trainee Stream’ dated 31 August 2015; a letter dated 2 September 2015 titled ‘Tasks for the Training to be delivered’ between trainer Loganathan Arthanary and nominee Navdeep Kaur.
On 16 May 2017, a response was filed on behalf of the Minister in which an order was sought for dismissal of the application on the basis that the Tribunal’s decision was not affected by jurisdictional error.
On 22 November 2017, orders were made, by consent, listing the matter for final hearing. Orders were made affording the applicants opportunities to file any amended application, affidavits and submissions, however, those opportunities were not taken at that time.
In the circumstances, it fell to the Minister to undertake the steps which were necessary for, and to incur the costs associated with, preparation of the application for final hearing. On 6 December 2017, a court book was prepared on behalf of the Minister and filed and served.
In the period November 2017 to November 2020, the applicant took no step in the proceeding. She did, however, communicate with the Court and/or the Minister on several occasions in more recent times.
The Minister filed submissions which were responsive to the grounds of review contained in the application. Following the developments referred to below, the applicant filed submissions.
The matter was listed for final hearing scheduled for 13 August 2020.
By email dated 7 August 2020, the applicant via a Mr Edwin Kleynhans, psychologist, notified the court of her intention to apply for the proceeding to be transferred to Western Australia. Mr Kleymans also foreshadowed the applicant’s intention to seek an adjournment of the hearing, doing so on the basis of her ‘mental condition’. Attached was a psychological assessment report dated 5 August 2020 completed by Mr Kleynhans. It is convenient to collate this report with the other various medical records below.
The final hearing was rescheduled for 18 November 2020.
On 8 October 2020, the applicant emailed the registry stating that ‘I am afraid that I will not be able to attend the hearing due to my medical condition and would like to request for adjournment of the hearing date . . . I am not mentally fit and prepared to attend the hearing therefore, kindly consider my request for adjournment of my hearing.’ The applicant attached a letter from her General Medical Practitioner, a letter from Ms R. Miocevich, psychologist; and, an addendum to the psychological report dated 5 August 2020. Shortly before the hearing the applicant filed further reports, all of which are considered below.
Edwin Kleynhans (Psychologist) – 5 August 2020
Mr Kleynhans, who conducts his practice from Collins St, Melbourne, noted that the applicant was an overseas student from India who had first been referred to him in mid-November 2019 and that she was proposing to travel to India in late November 2019 returning to Australia in February 2020. It appears the applicant’s consultation with this psychologist occurred remotely in the circumstance that she told Mr Kleynhams she had relocated to Perth (apparently by reason of a familial conflict with her brother who lived in Ballarat) and that “it is a known fact that depressed people feel less depressed in warmer climates.”
The psychologist, who recorded the applicant’s intention to pursue further study in Perth, made a diagnosis that the applicant suffered from an obsessive compulsive disorder. After identifying a number of stressors, each of which I have considered, Mr Kleynhans noted that he had consulted with the applicant on three occasions (19 November 2019, 18 February 2020 and again on 28 July 2020, the latter consultation been described as a “review session”).
The report, which had been prepared at the applicant’s request, did not state that it was the considered expert opinion of the psychologist that the applicant was unfit to participate in a final hearing. There was no evidence that the applicant has continued to consult this psychologist in the period July – November 2020.
Dr Moe Moe Wynn – Riverton Family Doctors – 6 October 2020
A general practitioner, Dr Moe Moe Wynn, wrote a letter “To Whom It May Concern” informing the recipient that the applicant had been under his or her care since June 2020 and that she had been prescribed certain medication since September 2020 and referred her to a psychologist.
The letter provided no further information.
Ms R. Miocevich – Riverton Family Doctors – 6 October 2020
This practitioner, a psychologist, provided a report recording that the applicant had reported to her that she was not mentally ready to deal with the matters required for the preparation of, and processes associated with the court case, MLG917/2017 Navdeep Kaur & Anor v MIBP & Anor. “Specifically she reported she is overwhelmed and unable to focus her attention and energy to the necessary tasks in relation to the court case and the court case itself.” It appears the applicant had been referred to this psychologist (who conducted practice from the same medical clinic) by her treating general practitioner, Dr Moe Moe Wynn.
Ms Miocevich noted that the applicant’s Kessler Psychological Distress Scale fell into the “very high level of psychological distress”. The psychologist considered that the applicant showed insight respecting her issues and was attempting to implement coping strategies.
Ms Miocevich had also written her report at the applicant’s request.
The applicant’s general practitioner (and psychologist, Ms Miocevich), conduct their practices from the same medical practice in Riverton, Western Australia.
Blood test – 16 November 2020
While the applicant had supplied a copy of a blood test which had been signed by her general practitioner, no test results were submitted.
Covid test – 16 November 2020
While the applicant had supplied a copy of a Covid-19 test which had been signed by her general practitioner, no test results were submitted.
Medical certificate – 16 November 2020
The applicant’s general practitioner also issued a medical certificate certifying that the applicant suffered from “a medical condition and presented to our clinic with symptoms of a (sic) upper respiratory tract infection and she is currently symptomatic, she will be unable to attend court hearing/work from 16/11/2020 to 18/11/2020.” Also provided was a copy of a scrip for a type of medication, the medicinal purpose of which was not explained, and which had been issued with “no repeats”.
This certificate may be taken as reflecting that the general practitioner considered the applicant would be unable to attend a court hearing until 18 November 2020. It was otherwise notable for its lack of specificity.
On 17 November 2020, the day prior to the scheduled hearing, the applicant sent an email to chambers. She sought an adjournment of the hearing as “I am suffering from viral infection symptoms and having a very bad sore throat and runny nose. My throat gets irritated and I cough a lot when I speak which will make hard for me to represent myself in the hearing. My Doctor advised me to get COVID tested, which I will do it and will submit my results to the court.”No such results were provided. However, attached to the email were copies of the recent medical certificate, prescription and pathology test requests referred to above.
No application for an adjournment or supporting affidavit was filed.
In the interim, on 11 November 2020, the applicant filed an outline of submissions. The late filing of those submissions deprived the Minister of an opportunity to consider them in the manner which had been contemplated by the orders made to regulate the orderly preparation of the matter for final hearing. The applicant’s submissions bore a quality indicating that the applicant had obtained some legal assistance.
When the matter was called on for hearing on 18 November 2020, the applicant appeared by audio link as did the solicitor-advocate for the Minister. The applicant agreed that she would be ready to proceed but when taken to her medical certificate accepted that her doctor had said he considered she would be unable to participate in a hearing at that time.
In light of the matters above, and in the circumstance that the applicant was self-represented, acting upon the best evidence currently available, the hearing was adjourned to Friday, 20 November 2020, being two days after the expiry of the medical certificate referred to above.
Consideration
As the applicant was self-represented before me, I have examined the materials on the court book, the decisions of each of the delegate and Tribunal, her application for judicial review and submissions.
Grounds of review – relevant considerations
The application contained two grounds of review which are as follows:
1. The decision by a delegate of the Minister for immigration to refuse my grant of Training and Research visa (402) was made under CL.402.241 of Schedule 2 of the regulations. The major issue was whether the applicant genuinely intended to stay in Australia to carry out the occupation, program or activity.
2. The Administrative Appeals Tribunal has made the decision not to approve the visa application considering that the nomination was refused. But they dint (sic) consider this point that immigration refused the visa application before the outcome of the nomination. Therefore, following Section 5 of the Administrative Decisions (Judicial Review) Act 1997 (ADJR), the AAT take into account a relevant consideration in the exercise of their power. Therefore the DIBP and Tribunal has failed to take into account all relevant circumstances and there is an error of law in the Delegates decision.
Ground 1 served to introduce the substantive complaint in Ground 2.
The substantive complaint made by those grounds of review were that the Tribunal fell into jurisdictional error by failing to consider that the delegate had refused her visa application before the outcome of an nomination approval application.
This was not a matter relevant to the Tribunal's assessment of whether the applicant satisfied cl 402.221(1) of the regulations at the time of its decision. As it stood at the time of her visa application, by force of cl 402.2 of the regulations the Tribunal was required to be satisfied, at the time of its decision that the applicant was, relevantly, the subject of an approved nomination by a sponsor that had not ceased and met the criteria in reg 2.72I.
On the evidence given by the applicant at the hearing before the Tribunal, she was not the subject of an approved nomination as her sponsor’s nomination approval had been refused. She was not the subject of any other approved nomination, nor was occupational training to be provided by the Commonwealth. The Tribunal found, at the time of its decision, that the applicant did not satisfy the mandatory criterion in cll 402.221(1)(a) or (b) of the regulations. That was dispositive of the matter, as the Tribunal had no discretion to waive that criterion.
Further, the order in which the delegate refused to grant the visa, and the nomination approval, was not a matter relevant to the Tribunal’s assessment. The decision cannot be impugned for failing to consider a consideration which was irrelevant,[3] or for failing to consider evidence which was not material.[4]
[3] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1996) 162 CLR 24 at 39 (Mason J).
[4] Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99, [111]-[112] (Robertson J).
Applicant’s submissions
As noted, the applicant filed submissions shortly before the final hearing. It is convenient to address each of those matters in turn but it is also appropriate to address some of them collectively.
The applicant contended that:
a)the Tribunal made a jurisdictional error by finding that the applicant did not genuinely intend to stay in Australia temporarily to undertake the occupational training;
b)the Tribunal failed to exercise its jurisdiction by finding that the applicant did not require further occupational training for the duration of 12 months;
c)the Tribunal failed to engage with the applicant’s evidence, in particular, Logan’s employment letter dated 29 August 2015 and agreement dated 31 August 2015, where the sponsor, McKkr’s, agreed to provide training for a period of two years in a dental technician position under Occupational Trainee Stream 402;
d)the Tribunal disregarded the applicant’s evidence by not taking into consideration the correspondence dated 31 August 2015 issued by the CEO of Logan Dental Training Laboratory to sponsor McKkr’s, providing an undertaking that they would be training the first applicant on approval of her 402 visa in order to enhance her skills.
e)the Tribunal failed to consider evidentiary material outlining “Tasks for training to be delivered” to the applicant by the training coordinator and the head of training program of McKkr’s. The applicant correctly submitted that in certain circumstances a failure to consider evidence may amount to jurisdictional error. It was also submitted that merely to ignore “relevant material doesn’t establish jurisdictional error. The fundamental question must be the importance of the materials to the exercise of the Tribunal’s functions and thus the seriousness of any error”.[5]
[5] Citing Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99, [111].
The difficulty with the foregoing submissions is that the Tribunal decided the matter on a basis which was effectively conceded; namely, that at the time of decision, the applicant was not identified in any nomination which met the requirements of reg 2.72I of the regulations. The submissions above sought to address matters relevant to whether the applicant was a person who genuinely intended to stay temporarily in Australia to carry out the occupation for which the visa was sought. As the Tribunal determined the matter on the basis that there was no relevant nomination in force, that was dispositive of the application and it was not necessary for the Tribunal to consider other criteria including whether the applicant genuinely intended to stay temporarily in Australia to carry out the occupation for which the visa was sought.
Once the Tribunal found that the mandatory criterion in cl 402.221(1) of the regulations was not met, it was required to dismiss the application irrespective of whether the criteria in cl 402.214 was satisfied. More precisely, in such circumstances, it was not required to consider the criteria in cl 402.214 before it could lawfully decide to affirm the delegate’s decision to refuse the application.[6]
[6] Compare Vidiyala v Minister for Home Affairs [2018] FCA 1973, [28]; Sanjel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1966, [18].
Other aspects to the submissions above were undermined by the Reasons. In particular, it was quite clear that the Tribunal did in fact consider the documents provided by the applicant, including the agreement upon which she had placed reliance: [11].
The applicant further submitted that the Tribunal had not accorded her procedural fairness in making its decision. It appeared that the basis for this complaint was that the Tribunal had, it was said, committed jurisdictional error by disregarding that the Minister should have made a decision on the nomination application prior to refusing the visa. In substance, the applicant complained that the Minister had made an error by refusing the visa beforehand without making a decision on the nomination application. This complaint is without merit. At the time of the decision by the Tribunal, the sponsor’s nomination application had been refused and no application for review of that application was made.
The final two submissions addressed the abolition of the visa class. As with the complaints addressing the failure to consider the genuine entrant criteria, these matters were of no relevance to the Tribunal’s dispositive finding that at the time of decision no relevant nomination had been approved. In fact, it had been refused.
Finally, I accept the Minister’s submission that any grant of relief in this matter would be futile for the reasons identified by the Tribunal at [22]. The 402 visa subclass was abolished with effect from 19 November 2016.[7] The transitional provisions provide that the amendments applied to applications for nomination approval made on or after 19 November 2016, the practical effect being that no new applications for nomination approval in relation to a subclass 402 visa could be made after that date.[8]
[7] See reg 2(1) and cll 47 and 124 of Sch 1 to the Migration Amendment (Temporary Activity Visas) Regulation 2016 (Cth), which repealed the criteria for nomination approval in reg 2.72I of the Regulations.
[8] Cl 6002(1)(d) of Sch 13 to the regulations.
For that reason, it was not possible for the applicant to satisfy cl 402.221 through a new nomination.
Conclusion
For the reasons above, the application should be dismissed.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 26 November 2020
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