Kaur v Minister for Immigration and Citizenship

[2025] FedCFamC2G 1012

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Kaur v Minister for Immigration and Citizenship [2025] FedCFamC2G 1012

File number(s):

SYG 1538 of 2020

Judgment of:

JUDGE KAUR-BAINS

Date of judgment:

1 July 2025

Catchwords:

MIGRATION – application for Regional Employer Nomination (Permanent) (Class RN) visa – the Tribunal on review refused to approve the employer’s nomination of the first applicant in the Direct Entry stream and accordingly refused to grant the applicants visa as there was no approved nomination – no jurisdictional error in the Tribunal’s decision not to approve the employer nomination – application dismissed

Legislation:

Migration Act 1958 (Cth), s 476

Migration Regulations 1994 (Cth), cll 187.233, 187.233(3) and 187.311 of Schedule 2

Cases cited:

Hamod v New South Wales [2011] NSWCA 375

Mora v Minister for Immigration and Border Protection [2018] FCA 1819

SZRUR v Minister Immigration and Border Protection (2013) 216 FCR 445

Division:

General Federal Law

Number of paragraphs:

17

Date of hearing:

27 May 2025

Place:

Sydney

First Applicant:

Appeared via Webex

Second Applicant:

No appearance

Third Applicant:

No appearance

Counsel for the First Respondent:

Ms F McNeil

Solicitor for the First Respondent:

Ms Q Ren of HWL Ebsworth Lawyers

Solicitor for the Second Respondent:

Submitting appearance save as to costs

ORDERS

SYG 1538 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

KULWINDER KAUR

First Applicant

ARWINDER SINGH

Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE KAUR-BAINS
DATE OF ORDER:	1 JULY 2025

THE COURT ORDERS THAT:

1.The application is dismissed.

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 KAUR-BAINS

1. The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 26 May 2020. The Tribunal affirmed a decision of a delegate of the Minister to refuse the applicants a Regional Employer Nomination (Permanent) (Class RN) visa (visa). This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).

2. The first applicant is the primary applicant, and the second applicant is the husband of the first applicant. The third applicant is the son of the first and second applicants. At the hearing before me, the third applicant no longer wished to be a party as he has turned 10 years old and is now an Australian citizen. Accordingly, I ordered the third applicant be removed as a party to the proceeding.

3. For the reasons set out below, I find the applicants have not demonstrated jurisdictional error.

   TRIBUNAL’S DECISION

4. The Tribunal at [2] to [6] of its reasons set out the details of the visa sought to be obtained by the applicants and the requisite criteria for the visa that needed to be met as follows:

   (a)On 25 August 2016, the applicants applied for the visa. At the time of application, Class RN contained one subclass, being subclass 187 (Regional Sponsored Migration Scheme).

   (b)The criteria for the grant of a subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The primary criteria is satisfied if met, by at least one applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria.

   (c)In the present case, the first applicant was seeking the visa in the Direct Entry stream to work in the nominated position of primary products inspector.

   (d)The delegate refused to grant the visas because the first applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations, which required her to be the subject of an approved nomination by the Minister. The delegate found that the nomination lodged by the nominator was refused on 24 October 2017 and accordingly the first applicant did not satisfy cl 187.233(3) and did not meet cl 187.233.

   (e)The delegate also found that the second and third applicants could not be granted subclass 187 visas, as they did not meet the secondary visa criterion in cl 187.311, requiring each of them to be a member of the family unit of a person who has met the primary visa criteria and holds a subclass 187 visa.

5. At [11] of its reasons, the Tribunal correctly noted the issue in the present case was whether there was an approved nomination. At [14] of its reasons, the Tribunal noted that the application for nomination for the position of primary products inspector had not been approved and the review of that refusal had been refused by the Tribunal. Accordingly, the Tribunal found that there was no approved nomination for the purposes of the first applicant's visa application. At [22] of its reasons, the Tribunal accordingly found that cl 187.233 was not met in respect of the first applicant.

6. At [23] of its reasons, in relation to the second and third applicants, the Tribunal noted that cl 187.311 required that a secondary visa applicant is a member of the family unit of the primary applicant who holds a subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa. As the first applicant had not met the requirements for the grant of a subclass 187 visa and was not the holder of a subclass 187 visa, it followed that the second and third applicants did not satisfy the requirements of cl 187.311.

   GROUNDS IN THE APPLICATION

7. The applicants’ application for judicial review dated 24 June 2020 and filed on 25 June 2020 contained the following grounds for judicial review (as per original):

   1.I wish to lodge judicial review because my 187 visa application was refused for not satisfying the criteria set out for Subclass 187 visa as in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations) and I understand that primary criteria must be satisfied by at least one applicant; however my nomination was refused solely depending upon the criteria related to my nominator profile and I didn't contribute to singe reason towards it.

   2.I am fully committed to meet the cl.187.233(3) of Schedule 2 to the Regulations which requires me to be the subject of an approved nomination as I am AQF qualified and hold valuable skills attributing towards my nominated position on the basis of my Australian experience gained.

   3.The Trustee for K & K Husna Family Trust, my nominator have already lodge judicial review for their nomination refusal and looking forward to get it remitted back to AAT; hence I also seek judicial review of my visa refusal for the same.

   PROCEEDINGS BEFORE THE COURT

8. The first applicant appeared at the hearing before me as a litigant in person. An interpreter in the Punjabi language had been requested by the applicant and was provided by the Court at the hearing. The first applicant said that her English language was proficient so that she did not require the assistance of an interpreter. Nevertheless, the interpreter remained in the courtroom to assist the first applicant if she so required.

9. Mindful of the Court’s duty to unrepresented litigants (Hamod v New South Wales [2011] NSWCA 375 at [309] to [316]; SZRUR v Minister Immigration and Border Protection (2013) 216 FCR 445 at [37]), I explained to the first applicant the role of the Court in undertaking judicial review. I ensured the first applicant was in possession of all relevant documents, namely the Court Book, application, supporting affidavits of the first applicant and the Minister’s written submissions dated 13 May 2025. The first applicant did not provide written submissions.

10. This matter was heard concurrently with proceedings SYG 1306 of 2020, being judicial review proceedings brought in this Court by the Trustee for K & K Husna Family Trust, the nominator, challenging the decision of the Tribunal to affirm a decision of a delegate of the Minister refusing the nomination approval in relation to the first applicant.

    CONSIDERATION

11. In support of the first applicant’s grounds of review, the first applicant contended that she had been working for the Trustee for K & K Husna Family Trust and was willing to work for them in the future, and that she was a genuine worker. Further, the first applicant also submitted she has not done anything wrong and now has a 10-year-old son who is an Australian citizen, whom she cannot leave alone. The first applicant said she was studying nursing and wanted to stay in Australia longer. As sympathetic as I may be to the first applicant’s and her family’s situation, these matters do not raise any relevant jurisdictional error grounds in the Tribunal’s decision.

12. The only issue the Tribunal needed to consider, which I find it did as set out at [5] of this judgment, was whether for the purposes of cl 187.233 there was an approved nomination by the Minister. Clause 187.233, at the relevant time was in the following terms:

    (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

    (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.

13. Grounds 1 to 3 refer to the fact that the applicant and the nominator had lodged judicial review proceedings before this Court and that the applicant was fully committed to meet cl 187.233(3). These matters do not give rise to jurisdictional error.  

14. At the hearing before me, counsel for the Minister accepted that if I found jurisdictional error in proceedings SYG 1306 of 2020 and made orders remitting that matter to the Tribunal, then it was appropriate that the Court set aside the Tribunal's decision the subject of challenge in these proceedings and remit the matter to the Tribunal for consideration: Mora v Minister for Immigration and Border Protection [2018] FCA 1819, [55] (Collier J). Similarly, if I found no jurisdictional error in proceedings SYG 1306 of 2020, then it would follow that I would find no jurisdictional error in this matter.

15. In proceedings SYG 1306 of 2020, I found that the Tribunal's decision was not infected by jurisdictional error and I made orders dismissing the application in those proceedings. Therefore, it follows that I find there is no jurisdictional error in this matter.

    CONCLUSION

16. As no jurisdictional error has been disclosed, the application must be dismissed.

    COSTS

17. I will hear the parties as to costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains.

Associate:

Dated:       1 July 2025