Kaur v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 524
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 524
File number(s): MLG 36 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 30 June 2022 Catchwords: MIGRATION – Regional Employer Nomination visa – whether there was fraud or misguidance by the employer/sponsor – whether the applicants were given an opportunity to present their case to the Tribunal – whether the Tribunal ought to have given the applicants additional time to find another employer – futile to remit – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 359A, 359C, 360, 363A, 476
Migration Regulations 1994 (Cth), reg 4.17(4) and cll 187.311 & 187.233 in Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Begum v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 222
Craig v State of South Australia (1995) 184 CLR 163
Holkoree v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1152
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
Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 73 Date of hearing: 28 June 2022 Place: Perth Applicants: First and second applicants in person Counsel for the First Respondent: Mr A Anastasi Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 36 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TAJINDER KAUR
First Applicant
SUKHWINDER SINGH
Second Applicant
HARSAKHI KAUR
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
30 JUNE 2022
THE COURT ORDERS THAT:
1.The application be 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 KENDALL:
BACKGROUND
The first applicant is a citizen of India (Court Book (“CB”) 1-2). The second and third applicants are also Indian citizens (CB 83-84 & 90-91) and they are the first applicant’s husband (CB 3-4) and daughter (CB 4-5) respectively.
On 30 July 2015, the first applicant applied for a Regional Employer Nomination (Class RN) (Subclass 187) visa (the “visa”) (CB 1-18). In that application, the first applicant was nominated for the position of “Cook” (CB 8) with Kumar Pty Ltd (the “sponsor”) (CB 95). The second and third applicants were identified in that application as members of the first applicant’s family unit (CB 3-5).
On 13 January 2016, the then Department of Immigration and Border Protection (the “Department”) requested that the first applicant (through the applicants’ representative) provide more information in relation to the visa application (CB 24-42).
The applicants provided further supporting documents to the Department, including identity documents, police and criminal clearance certificates, English language test results and various educational records (CB 43-93).
On 11 October 2016, a delegate of the first respondent (the “Minister”) refused the sponsor’s application for approval of the nomination of the position (CB 107).
That same day (also on 11 October 2016), the Department wrote to the first applicant (through the applicants’ representative) and invited her to comment on the fact that the sponsor’s nomination application had been refused (CB 94-98).
The applicants did not respond to that invitation to comment.
On 9 November 2016, a delegate of the Minister refused to grant the applicants the visas (CB 106-111). The delegate determined that, as the sponsor’s nomination application had been refused, the first applicant did not satisfy cl 187.233(3) in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 107). The delegate also found that the second and third applicants failed to satisfy cl 187.311 in Schedule 2 of the Regulations (CB 109-110).
On 10 November 2016, the applicants applied for review of the delegate’s decision by the Administrative Appeals Tribunal (the “Tribunal”) (CB 112-114). The applicants were represented by a registered migration agent in relation to the review application (CB 113-114).
The sponsor also sought review of the delegate’s decision to refuse its nomination application.
On 16 November 2017, the Tribunal affirmed the delegate’s decision to refuse the sponsor’s nomination application (CB 150).
On 17 November 2017, the Tribunal wrote to the applicants (through their representative and pursuant to s 359A of the Migration Act 1958 (Cth)) inviting them to comment on or respond to the Tribunal’s decision in relation to the sponsor’s review application (CB 139-142). Specifically, the invitation stated:
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.
Please note, however, that we have not made up our mind about the information.
Particulars of the information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review:
1.On 16 November 2017 the Tribunal affirmed a decision to refuse the application for approval of a nomination of an appointment in respect of this visa application.
…
Your comments or response should be received by 1 December 2017. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.
…
If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
The applicants did not respond to the above invitation to comment.
On 12 December 2021, the Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (CB 149-151).
On 8 January 2018, the applicants applied to this Court for judicial review of the Tribunal’s decision (CB 152-159). The application is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicants must demonstrate that the Tribunal fell into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is three pages in length and spans 16 paragraphs.
The Tribunal first identified the type of visas the applicants had applied for and the relevant visa subclass. The Tribunal also identified the relevant criteria for the grant of Subclass 187 visas (at [1]-[3]).
The Tribunal confirmed that the first applicant had sought the visa via the Direct Entry stream to work in the nominated position (at [4]). The Tribunal also summarised the delegate’s decision (at [5]).
The Tribunal then stated:
6.On 17 November 2017 the Tribunal wrote to the review applicants under s.359A of the Act, inviting them to provide in writing comments on information that it considered would be part of the reason for affirming the decision under review. The applicants were advised of adverse information, being that on 16 November 2017 the Tribunal affirmed a decision to refuse the application for approval of a nomination of an appointment in respect of the visa application, how this information is relevant to the review and the consequences of the Tribunal relying on the information.
The Tribunal noted that the invitation was sent to the last address provided by the first applicant in relation to the review and that the applicants were informed that, should a response not be received by 1 December 2017, a decision may be made without taking any further steps to obtain information from them (at [7]).
The Tribunal continued:
8.The review applicants have not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal
The Tribunal identified that the issue in this case was whether there was an approved nomination (at [10]) and explained that cl 187.233 in Schedule 2 of the Regulations required that the position be the subject of an approved nomination and that the position must be the position “the subject of the declaration made” in the visa application (at [11]).
The Tribunal continued:
12. In addition, this criterion also requires that:
•the person who will employ the applicant is the person who made nomination
•the nomination has been approved and has not been subsequently withdrawn
•there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1 .13B); or it is reasonable to disregard any such information
•the position is still available to the applicant, and
•the visa application was made no more than six months after the nomination of the position was approved.
The Tribunal explained that it had affirmed the decision refusing the nomination on 16 November 2017 (at [13]) and ultimately found that, because cl 187.233 in Schedule 2 of the Regulations had not been met (at [14]), the first applicant did not meet the requirements for the visa (at [15]).
On the basis of the above the Tribunal affirmed the decision refusing to grant the applicants the visas (at [16]).
PROCEEDING IN THIS COURT
The applicants filed their application for judicial review in this Court on 8 January 2018. That application contains one “ground of review” which states (without alteration):
1.I have provided a separate statement with this application.
Attached to the application is a two page document headed “grounds for my judicial review application”. Relevantly, that document provides:
My name is TAJINDER KAUR and I am a judicial review applicant for the refusal of my subclass 187 visa application. I lodged a subclass 187 visa application with immigration department which was refused due to the reason that the associated nomination lodged by the employer was refused as well. I have serious concerns about the refusal of my 187 visa application from immigration department and also from the AAT department. In the following paragraphs, I am going to state my concerns.
BACKGROUND
•I lodged my subclass 187 visa application on 30th July 2015
•On 9th November 2016, my 187 visa application was refused as the 187 nomination was refused by the immigration department.
•I lodged my AAT review application on 10th November 2016.
•My AAT review application was refused on 12th December 2017.
MY CONCERNS AND MY CLAIMS
I acknowledges that I do not meet the legislation requirements for my subclass 187 visa application but I humbly request to the Federal Circuit Court to give a generous consideration to the factors that were beyond my control and lead to the refusal of my subclass 187 visa application. I want to bring your attention to the following factors.
VICTIM OF MISGUIDANCE AND FRAUD BY THE EMPLOYER:
Before applying for a subclass 187 visa application, I was holding a subclass 572 visa. At that time, I was already working as a cook since 2013 and did get multiple job offers from different employers who also were ready to sponsor me for a work visa (457 visa category) or for a subclass 187 visa (RSMS category). Finally, I selected “KUMAR PTY LTD” as the employer offered me a package of $54,000 for the COOK position and was ready to sponsor me under RSMS scheme.
I lodged my subclass 187 visa application with “KUMAR PTY LTD” on 30th July 2015. On 19th August 2015, employer was monitored under 457 visa category. On 22nd August 2016, employer's business sponsorship was cancelled due to the breach of employer's 457 sponsorship obligations. On 11th October 2016, the nomination application for my 187 visa application was refused due to the reason that employer's 457 visa sponsorship was cancelled. Consequently, my 187 visa application was refused on 9th November 2016 as there was no approved nomination. During all these times, I was never informed by the employer that the real reason for the refusal of my 187 nomination was that employer's 457 visa sponsorship was cancelled. I was not given a chance to provide my justification to immigration department as the employer refused to talk to me on this matter. I tried to solve the matter with the help of a lawyer but didn’t get positive response from my employer.
My purpose to apply for this judicial review is that I am a victim of fraud by my employer. If I would had been told about the 457 sponsorship cancellation of my employer's business, I could have found another employer before the refusal of my 187 visa application. My employer assured me that he will fight in AAT department for the nomination refusal. But, I was deceived again by my employer when he didn't fight for my nomination refusal in AAT. I am totally broken with my current situation and want to bring this matter in Federal Court's attention. I also want to dispute over the conduct of immigration department and the Administrative Appeals Tribunal. Why I wasn't provided additional time to find another employer by the immigration department. Why the unsatisfactory actions of my employer caused the unsuccessful outcome on my 187 visa application. I didn't do anything wrong and I do not deserved to be punished for someone else mistakes. I do not agree with the decisions from immigration department and AAT and want to challenge the decisions given by both departments in the federal circuit court. Thanks You
In support of the application for review, the first applicant affirmed an affidavit on 8 January 2018. That affidavit annexes a copy of the Tribunal’s decision and its notification letter and state:
I am providing correct information + evidence in support to my judicial review application.
My grounds for judicial review application are genuine.
On 3 October 2018, procedural orders were made by a Registrar of this Court giving the applicants an opportunity to file an amended application, any affidavit evidence and written submissions. No additional documents were filed by or on behalf of the applicants.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicants on 8 January 2018, a Court Book numbering 178 pages (marked as Exhibit 1) and written submissions filed by the Minister on 3 June 2022.
Before this Court the first applicant appeared without legal representation and was assisted by an interpreter in the Punjabi and English languages. The second applicant was present at the hearing but did not address the Court. The Court confirmed with the first applicant that she had received a copy of the Court Book and the Minister’s written submissions. The Court also confirmed that she would be speaking on behalf of her husband and daughter (the second and third applicants).
The Court noted that the application for judicial review filed by the applicants only seeks relief by way of an order quashing the Tribunal’s decision. It does not seek a writ of mandamus. As such, this Court’s jurisdiction under s 476 of the Act is not properly invoked. The Minister, in written submissions filed with this Court on 3 June 2022, did “not oppose the applicants being granted leave to amend the application to include the necessary relief”. The Court explained this issue to the first applicant and, with her agreement, made an order amending the application for judicial review to include a request for a writ of mandamus.
Noting that the applicants were unrepresented, the Court also gave the first applicant an opportunity to explain orally what she thought the Tribunal “did wrong”. This is the standard practice in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the first applicant, the Court explained to her that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicants the visas that they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Unfortunately, the first applicant did not address the issue of jurisdictional error. Rather, her submissions focussed on the “unfairness” and inflexibility of the particular visa category.
In the circumstances, the Court is left to scrutinise the applicants’ sole ground of review. Noting that the applicants prepared their application for judicial review without legal assistance, however, the Court will (in its duty to assist self-represented litigants) read the applicants’ ground of review and attached “statement” as broadly as possible and remain astute and alert to the possibility of jurisdictional error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
CONSIDERATION
As outlined above, the applicants indicated in their application for judicial review (filed in this Court on 8 January 2018) that their “grounds of review” were provided in a separate statement attached to their application titled “grounds for my judicial review application” (dated 8 January 2018 and signed by the first applicant).
To the extent that the applicants suggest that there was an error in relation to the delegate’s decision in that statement, this Court has no jurisdiction to review that decision: the Act, ss 476(2) and (4). Further, the Tribunal conducts a de novo review which would in effect “cure” any error in the delegate’s decision: Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127 at [37]-[38].
Having reviewed the statement provided with the application for judicial review and the material in the Court Book, the following issues appear to be of concern to the applicants:
(a)Issue 1 – Whether there was fraud or misguidance by the employer/sponsor;
(b)Issue 2 – Whether the applicants were given an opportunity to present their case to the Tribunal; and
(c)Issue 3 – Whether the Tribunal ought to have given the applicants additional time to find another employer.
Issue 1 – Whether there was fraud or misguidance by the employer/sponsor
To the extent that the applicants claim that misguidance or fraud on the part of their sponsor (employer) was an issue before the Tribunal, the Court disagrees.
There is no evidence before this Court to suggest that the applicants raised fraud or misguidance at any time before the Tribunal (or the Department). Indeed, the applicants failed to respond to the Tribunal’s invitation to comment letter (CB 139-142) or take any active part in the review application.
Further, even if there were fraud on the part of the sponsor, this could not have assisted the applicants. Here, the sole issue for consideration by the Tribunal was whether the first applicant was the subject of an approved nomination as required by cl 187.233 in Schedule 2 of the Regulations. That provision states:
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 subregulation 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.
…
In this regard, the applicants were invited to comment on information that indicated that the sponsor’s nomination application had been refused (CB 139-142). The applicants did not provide any response to the invitation to comment.
Clause 187.233 in Schedule 2 of the Regulations did not provide for any discretion on the part of the Tribunal to take into account any “other factors” raised by the applicants. The question for the Tribunal was simply whether the first applicant was the subject of an approved nomination.
Here, the applicants did not provide any information to the Tribunal (or to the delegate or this Court) to indicate that the first applicant was the subject of an approved nomination.
The Tribunal was under no obligation (and had no discretion) to consider any other information or “factors” raised by the applicants (including in relation to any fraud or misguidance – although, again this concern was never raised by the applicants) and made the only decision open to it.
No error arises in relation to Issue 1.
Issue 2 – Whether the applicants were given an opportunity to present their case to the Tribunal
The applicants here claim that they were denied an opportunity to “present their case”. This fails on a factual level.
As outlined above, the Tribunal invited the applicants to comment in information that the Tribunal considered would “be the reason, or a part of the reason, for affirming the decision under review” (CB 141). That invitation (CB 139-142):
(a)invited the applicants to give the Tribunal in writing any information relevant to whether the first applicant was the subject of an approved nomination: ss 359(2) and 359B(1) of the Act;
(b)gave the applicants 14 days within which to respond (being the prescribed period set out in reg 4.17(4) of the Regulations): s 359B(2) of the Act;
(c)gave the applicants clear particulars of the information the Tribunal considered would be the reason, or part of the reason for affirming the decision under review: s 359A(1)(a) of the Act;
(d)explained why that information was relevant to the review and the consequences of it being relied on in affirming the decision under review: s 359A(1)(b) of the Act;
(e)invited the applicants to comment or respond to that information: s 359A(1)(c) of the Act; and
(f)was sent to the applicants’ representative by email (a valid method of notification specified in s 379A of the Act) at the last known email address provided by the applicants in connection with their Tribunal review: s 359A(2)(a) of the Act.
The invitation to comment complied with the relevant requirements in ss 359, 359A and 359B of the Act. Further, the first applicant does not appear to dispute that she failed to provide information to the Tribunal in response to that invitation and thus did not take advantage of the opportunity to provide information to the Tribunal.
To the extent that the applicants are suggesting that they ought to have been invited to attend a hearing before the Tribunal, the Court again disagrees.
Once the applicants failed to respond to the invitation to comment letter, s 359C(1) of the Act was enlivened. This meant that the Tribunal was not required to invite the applicants to attend a hearing (as the exception in s 360(2)(c) of the Act applied).
This Court has previously set out the consequence of the provisions of the Act in this regard in its decision in Holkoree v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1152. The Court repeats its analysis from that decision below, as follows.
Because s 360(2) of the Act applied, by virtue of s 360(3) of the Act the applicants were not entitled to appear before the Tribunal. Section 363A of the Act explains what is to occur if an applicant is not “entitled” to appear. That section relevantly provides that:
If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.
The collective operation of ss 359C, 360 and 363A of the Act has been described as having a “cascading effect” which is triggered by an applicant’s failure to provide information in response to the invitation to comment letter.
Put simply, the applicants here were not invited to a hearing as they were no longer entitled to attend a hearing. Further, the Tribunal had no power to allow the applicants to attend a hearing. Hence, if the Tribunal had invited the applicants to attend a hearing, it would have exceeded its statutory powers and, accordingly, its jurisdiction.
The applicants were required to provide the information requested by the Tribunal. They did not do so. This “triggered” the “cascading effect” inherent in ss 359C, 360 and 363A of the Act. The structure of the legislation is such that, no matter how compelling the reason for not providing the information is, if an applicant does not provide the information by the required date (and does not seek an extension) then the applicant loses his or her right to attend a hearing.
This was made clear to the applicants in the invitation to comment letter which, relevantly, stated (CB 35):
If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
The applicants were, accordingly, on notice of what would occur if they did not provide a response to the Tribunal. They chose not to do so.
No error arises out of the Tribunal’s failure to invite the applicants to attend a hearing before it.
Issue 2 does not identify any jurisdictional error on the part of the Tribunal.
Issue 3 – Whether the Tribunal ought to have given the applicants additional time to find another employer
The applicants claim that the Tribunal should have provided the first applicant with additional time within which to find another employer. The Court again disagrees.
While the Tribunal may adjourn a review from time to time, there is no obligation for a Tribunal to do so: s 363(1)(b) of the Act.
There is no evidence before the Court to suggest that the applicants requested, at any point in the review process, that the Tribunal adjourn the matter or provide them with any additional time to enable the first applicant to find another employer. No fault can be found with the Tribunal for proceeding to make a decision where no request was made to the contrary.
Further, even if the Tribunal had adjourned the matter or provided the applicants with any additional time to find a new employer, this would not have assisted the applicants. In this regard, the Court references the comments of Justice Mortimer in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 (“Singh”) (and affirmed in Begum v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 222 at [22]), as follows (emphasis added):
88.In my opinion the criterion imposes a single requirement, which is either fulfilled or not fulfilled at the time of decision. At the time of the delegate’s decision the employer nomination from Harrico had been refused by the Minister. The words in cl 187.233 “position nominated in an application for approval that seeks to meet the requirements of” reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application. The “position” referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances. The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed.
89.The structure of reg 5.19 contemplates (whether for sub-reg (3) or (4), although (4) is the relevant sub-regulation in this appeal) that the Minister is obliged to either accept or reject the nomination, depending on whether the matters in the sub-regulation are satisfied. Again, this contemplates an assessment by the Minister at a particular point in time. Thereafter, the only variation to this assessment contemplated by the scheme is review by (now) the Administrative Appeals Tribunal. On merits review there is an opportunity for an employer to adduce new or further material in order to satisfy the Tribunal that the nomination should be approved. It is in this way that the “time of decision” criterion can operate on merits review, as described by the Full Court in Singh at [28], referring to Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 264 ALR 417 at [24]-[27]. This is the mechanism the scheme contemplates to alter an unsuccessful nomination. It does not contemplate that an employer can file repeated nomination applications in relation to the same visa application and the same visa applicant.
90The identification of this as a criterion for the validity of a visa application is important in the scheme. The appellant’s construction deprives the criterion of its intended operation as a criterion of validity because it contemplates further nominations can be filed and can subsequently satisfy cl 187.233(1). An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a “once off” process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).
The effect of the decision in Singh is that the first applicant’s visa application was tied to the employer nomination and could not be substituted by another nomination from a different employer (or, in fact, a new nomination from the same employer).
There was thus no error in the Tribunal proceeding to make its decision.
No error arises in relation to issue 3.
Futility
As this Court has explained in other similar matters, and as outlined above in relation to issue 3, visas of this sort are, in effect, “linked” to the sponsor and to the approval of the relevant nomination application. In the circumstances of this matter, even if there was a jurisdictional error, it would be futile for the Court to remit the matter to the Tribunal: Singh. The Tribunal would, again, have no choice but to find that the first applicant does not meet cl 187.233 in Schedule 2 of the Regulations as she is not the subject of an approved nomination.
Accordingly, any decision to remit the matter would be futile.
CONCLUSION
The application for judicial review filed by the applicants on 8 January 2018 has failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
The application (as amended) is, accordingly, dismissed.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 30 June 2022
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