Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 682

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 682   

File number(s):	MLG 2448 of 2021
Judgment of:	JUDGE EGAN
Date of judgment:	22 August 2022
Catchwords:	MIGRATION – Failure by first applicant to establish that there was an approved employer nomination in place in respect of the first applicant – failure to establish an entitlement to the grant of a visa – no jurisdictional error established – application dismissed.
Legislation:	Clause 187.233(3) of Schedule 2 to the Migration Regulations 1994 (Cth)
Cases cited:	Singh v Minister for Immigration and Border Protection [2017] FCAFC 105
Division:	Division 2 General Federal Law
Number of paragraphs:	11
Date of last submission/s:	19 August 2022
Date of hearing:	19 August 2022
The Applicants:	Self-represented litigants
Solicitor for the First Respondent:	Clayton Utz
Solicitor for the Second Respondent:	Submitting appearance, save as to costs

ORDERS

MLG 2448 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

GURPREET KAUR

First Applicant

GURPREET SINGH

Second Applicant

ISHMEEN KAUR

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:	22 AUGUST 2022

THE COURT ORDERS THAT:

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

2.The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship and Multicultural Affairs’.

3.The First Applicant and the Second Applicant 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 first applicant is a citizen of India who applied for a Regional Employer Nomination (Permanent) (Class RN) Visa, namely for a Subclass 187 visa under the Regional Sponsored Migration Scheme in respect of the nominated occupation of a cook.

2. The second applicant and third applicant made applications for the visa as members of the first applicant’s family unit. 

3. The relevant employer nomination was made by A S Randhawa Holding Pty Ltd ATF A S Randhawa Investments Trust (the nominor), however, a delegate of the Minister refused to grant the nomination application.

4. A delegate of the Minister who considered the first applicant’s visa application refused to grant the visas to each of the applicants because there was no approved nomination as required by Clause 187.233(3) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

5. Though the nominor initially sought review of the decision of the delegate to refuse its nomination application in this Court, the nominor, on 25 March 2022, caused a Notice of Discontinuance to be filed in respect of such review proceedings.[1]

   [1]           See Exhibit 2 – Notice of Discontinuance.

6. The Tribunal had found that the visa applications could not succeed because there was no approved nomination in place. The tender of the Notice of Discontinuance at the time of the hearing before the Court established that there was no prospect of the nomination application ever being approved. 

7. There was no evidence before the Court that the Tribunal had erred in its finding.

8. The first applicant’s failure to satisfy the relevant criteria was fatal to the grant of the visa applications in respect of all applicants, because none of them had satisfied the relevant criteria.

9. The applicants have failed to establish jurisdictional error on the part of the Tribunal. [2]

   [2]           Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 at [88] – [90].

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

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

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       22 August 2022