Kaur v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FCA 437

FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 437

Appeal from:

Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2067

File number:

NSD 871 of 2021

Judgment of:

PERRAM J

Date of judgment:

8 May 2023

Catchwords:

MIGRATION – application for leave to appeal interlocutory judgment – where Federal Circuit Court dismissed appeal application in show cause hearing – where regional employer nomination visa (subclass 187) – where Applicant does not have approved nomination – where refusal of nomination not subject to review – whether appeal futile 

Legislation:

Migration Act 1958 (Cth) s 5

Migration Regulations 1994 (Cth) Sch 2 cl 187.233

Division:

General Division

Registry:

New South Wales

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

5

Date of last submission:

31 March 2023

Date of hearing:

8 May 2023

Counsel for the Applicant:

The Applicant appeared in person

Counsel for the First Respondent:

Ms A Wong

Solicitor for the First Respondent:

Mills Oakley

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice

ORDERS

NSD 871 of 2021

BETWEEN:

AMANPREET KAUR

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	PERRAM J
DATE OF ORDER:	8 MAY 2023

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed with costs as agreed or as taxed.

2.The name of the First Respondent be changed to the Minister for Immigration, Citizenship and Multicultural Affairs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

PERRAM J:

1. This is an application for leave to appeal from the then Federal Circuit Court of Australia. Leave should be refused because any appeal would be futile. The Applicant is a citizen of India who does not have Australian nationality and is, as such, a non-citizen within the meaning of s 5 of the Migration Act 1958 (Cth). She applied for a regional employer nominated visa (subclass 187).

2. One of the requirements which must be met in order to obtain the grant of such a visa is that an employer must nominate the visa applicant for a position and this nomination must be approved by the Minister: Migration Regulations 1994 (Cth) Sch 2 cls 187.233(1)(a) and (3). Although an employer did nominate the Applicant, the Minister refused to approve the nomination. Whilst it is possible for the employer to seek a review of such a refusal, no such application was brought. There is therefore presently no approved nomination within the meaning of cl 187.233. In the absence of an approved nomination, the Applicant is not eligible for the visa which she seeks.

3. The Applicant submits that it is not her fault that there is no approved nomination in place.  She submits that the employer lied to her about the availability of the job and, indeed, had closed the shop in question.  For the purposes of this application, this may be assumed to be true.  On that assumption, I would accept the Applicant’s submission that the situation she finds herself in is unfair and not of her doing.  However, even accepting this, it does not solve the problem that she is not eligible for the visa.

4. Consequently, even if error were established in the reasons of the court below, there would be no utility to any appeal from that decision.  The court would not set aside the Tribunal’s decision where it is inevitable that it would have to reach the same conclusion. 

5. The application for leave to appeal is therefore dismissed with costs as agreed or as taxed.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.

Associate:

Dated:       8 May 2023