Kaur v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 570

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 570

File number(s):	MLG 2450 of 2021
Judgment of:	JUDGE EGAN
Date of judgment:	15 July 2022
Catchwords:	MIGRATION – Application for Subclass 187 Visa – requirement for approved nomination – no nomination application approval in place – failure by applicants to satisfy pre-conditions for the grant of the visas – no jurisdictional error established – application dismissed.
Legislation:	Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth): Division 11.2 and Clause 187.233 of Schedule 2
Division:	Division 2 General Federal Law
Number of paragraphs:	7
Date of last submission/s:	14 July 2022
Date of hearing:	14 July 2022
Place:	Brisbane
Solicitor for the Applicants:	Self - Represented Litigant
Solicitor for the First Respondent:	Sparke Helmore
Solicitor for the Second Respondent:	Submitting appearance, save as to costs

ORDERS

MLG 2450 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

LOVEPREET KAUR

First Applicant

GURVANSHDEEP SINGH

Second Applicant

JUGRAJ SINGH

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	15 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.Pursuant to Division 11.2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the female Applicant is hereby appointed litigation guardian for the Second Applicant, the requirement for the filing of an affidavit having been dispensed with.

3.The Amended Application for Review filed on 17 January 2022 be dismissed.

4.The First and Third Applicants pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $6,500.00.

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 female applicant is a citizen of the Republic of India who applied for a Regional Employer Nomination (Permanent) (Class RN) Visa on 20 July 2017. The applicants Gurvanshdeep and Jugraj Singh applied for visas as members of the female applicant’s family unit.

2. In order for the female applicant to qualify for the grant of the visa to her, the requirements of Clause 187.233 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) first had to be met. Clause 187.233 relevantly provided as follows:

   “187.233  

   (1)  The position to which the application relates is the position:

   (a)  nominated in an application for approval that:

   (i)  identifies the applicant in relation to the position; and

   (ii)  is made in relation to a visa in a Direct Entry stream; and

   (iii)  seeks to meet the requirements of sub regulation 5.19(12); 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.

   (5)   … .”

3. On 23 August 2021, the Administrative Appeals Tribunal (the Tribunal) affirmed the decision of the delegate made on 21 November 2018 to refuse the visa application. At the time of the hearing before the Tribunal, it was established that there was no approved nomination application in respect of the female applicant’s proposed future employment as a cook. It was further confirmed by Mr Chan, who appeared on behalf of the first respondent at the hearing that the nomination application proceedings commenced by AS Randhawa Holdings Pty Ltd had been discontinued.

4. In circumstances where there was no approved nomination application, and further where the nominator had withdrawn proceedings in respect of the nomination application refusal, the female applicant’s visa application had no prospects of success.

5. The female applicant has failed to establish jurisdictional error on the part of the Tribunal.

6. The Amended Application for Review is without merit and is dismissed.

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

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       14 July 2022