Kaur v Minister for Immigration

[2018] FCCA 3457

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3457

Catchwords:
MIGRATION – Application for 457 visa – no approved nomination of sponsor – no pending application for nomination – no relevant decision able to be the subject of review – application dismissed.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), s.29

Federal Circuit Court Rules2001 (Cth), r.44.12(1)(a)

Migration Act 1958 (Cth), ss.140E, 140GB, 312, 347

Migration Regulations 1994 (Cth), cl.457.223(4)(a)

First Applicant: HARPREET KAUR

Second Applicant: PARMJEET SINGH

Third Applicant: HARPREET KAUR AS LITIGATION GUARDIAN FOR SAMARBIR SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1150 of 2017

Judgment of: Judge Egan

Hearing date: 7 November 2018

Date of Last Submission: 7 November 2018

Delivered at: Brisbane

Delivered on: 7 November 2018

REPRESENTATION

First Applicant: Self-represented and Litigation Guardian for Third Applicant

Second Applicant: Self-represented

Solicitors for the Respondents: Sparke Helmore Lawyers

IT IS ORDERED THAT:

1. The Application filed 21 November 2017 be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The First and Second Applicants pay the costs of the First Respondent fixed in the amount of $3,737.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1150 of 2017

HARPREET KAUR

First Applicant

PARMJEET SINGH

Second Applicant

HARPREET KAUR AS LITIGATION GUARDIAN FOR SAMARBIR SINGH

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India who, on 27 November 2015, applied for a Temporary Work (Skilled) (Subclass 457) visa.  The application indicated that the applicant’s sponsoring employer was a company carrying on business under the name of N K Hiaider Pty Ltd.  The applicant’s spouse, one Parmjeet Singh, was listed as a dependant applicant.  She is the second applicant. 

2. The third applicant is a child born of the union of the first applicant and the second applicant.  On 27 and 30 January 2017, the department invited the applicant to comment on information, that being that the sponsor did not have an approved nomination, and that, therefore, her visa application was unlikely to be successful.  On 1 March 2017, the delegate refused the grant of the visa. 

3. The delegate was not satisfied that the applicant was the subject of an approved sponsor nomination, and therefore, that the applicant did not satisfy clause 457.223(4)(a) of schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).

4. On 20 March 2017, the applicant applied to the tribunal for review of the delegate’s decision. On 28 September 2017, the tribunal invited the applicant to comment on the validity of the applications for review. The tribunal notified the applicants that it was of the view that the application was not valid because at the time the review application was lodged, the applicant was not identified in a nomination under section 140GB of the Migration Act 1958 (Cth) (“the Act”) that was either approved or pending.

5. The tribunal also indicated that there was no pending application for review before the tribunal of either a decision not to approve the sponsor under section 140E of the Act, or a decision not to approve the nomination under section 140GB of the Act. On 26 October 2017, the tribunal found that it did not have jurisdiction to review the delegate’s decision.

6. The tribunal noted that it had jurisdiction to review a decision under the Act if an application was properly made under section 347 or 412 of the Act, or otherwise pursuant to section 29 of the Administrative Appeals Tribunal Act1975 (Cth).

7. An applicant in the category of the current first applicant, who claims to be nominated by a standard business sponsor, must first establish that the nomination of an occupation in relation to the applicant must have been approved under section 140GB of the Act, and that the nomination made by a person who is a standard business sponsor at the time the nomination was approved (clause 457.223(4)(a) of schedule 2 to the regulations). A standard business sponsor:

   …is a person who is an approved sponsor and is approved as a sponsor in relation to the standard business sponsor class by the Minister under section 140E(1) of the Act.

8. It is a criterion for the grant of the subject visa that the non-citizen is sponsored by an approved sponsor. Accordingly, it was found by the tribunal that such a decision is only reviewable where, at the time the review application was made, either the visa applicant was identified in a nomination under section 140GB by an approved sponsor, or there was a pending application for review.

9. In the visa application form lodged on 27 November 2015, the first applicant listed her spouse as a second applicant, and later, the child of their union was listed as the third applicant.  On 28 September 2017, the tribunal invited the applicants to comment on whether a valid application had been made. 

10. It was the case that there was no pending application for review before the tribunal of either a decision not to approve the sponsor under section 140E, nor was there a decision not to approve the nomination under section 140GB of the Act.

11. There also was no pending review of the nomination refusal before the tribunal.  At [9] the tribunal found that at the time the application to review the decision to refuse to grant the visas was made, the applicants were not “sponsored by an approved sponsor”, and that no review of the decision not to approve the sponsor was pending.  That finding necessarily had the effect of establishing that the first applicant was not sponsored by the prospective employer identified in the application.  There was never any approved nomination.

12. In those circumstances, there has been no jurisdictional error demonstrated in respect of the tribunal’s finding that it did not have jurisdiction in the matter. Accordingly, the application for review is dismissed.

13. The court is not satisfied that the application has raised any arguable case for the relief claimed, and accordingly, the application is dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules2001 (Cth).

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:  

Date:  27 November 2018