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

[2021] FCA 1547

FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1547

Appeal from:

Kaur & Anor v Minister & Anor [2020] FCCA 3210

File number(s):

VID 805 of 2020

Judgment of:

DAVIES J

Date of judgment:

7 December 2021

Date of publication of reasons:

9 December 2021

Catchwords:

 MIGRATION – Training and Research visa – where first appellant must satisfy statutory criteria under cls 402.214 and 402.221 of the Migration Regulations 1994 (Cth) (Migration Regulations) – where delegate of the Minister (delegate) refused visa due to first appellant not meeting criteria under cl 402.214 of the Migration Regulations – where sponsor’s application for nomination to satisfy cl 402.221 of the Migration Regulations made but separately refused by delegate – where no application for review of nomination decision or other nomination application pending at time of Administrative Appeals Tribunal (Tribunal) review proceeding – where the criteria for nomination approval repealed at the time of hearing – where statutory requirement for approval in nomination application in cl 402.221 could not be met in consequence – Tribunal affirmed delegate’s decision on basis that cl 402.221 was not met and could not be met due to repealed legislation – no error of law – appeal dismissed

Legislation:

 Migration Regulations 1994 (Cth) sch 2 cls 402.221, 402.414

Migration Amendment (Temporary Activity Visas) Regulation 2016 (Cth)  regs 2(1), 2.72I, sch 1 cls 47, 124

Division:

General Division

Registry:

Victoria

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

8

Date of hearing:

7 December 2021

Counsel for the Appellants:

The appellant appears in person

Solicitor for the First Respondent:

Mr J Simpson of Clayton Utz

ORDERS

VID 805 of 2020

BETWEEN:

NAVDEEP KAUR

First Appellant

JAGROOP SINGH

Second Appellant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	DAVIES J
DATE OF ORDER:	7 DECEMBER 2021

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants to pay the costs of the first respondent, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

DAVIES J:

1. The appellants have appealed the decision of the Federal Circuit Court of Australia (FCC), as it then was, dismissing an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal), affirming a decision of the delegate of the first respondent refusing to grant the first appellant a Training and Research (Class GC) (subclass 402) visa (subclass 402 visa or visa). The delegate refused to grant the visa on the basis that the first appellant did not meet the requirements prescribed by cl 402.414 of sch 2 to the Migration Regulations 1994 (Cth) (Migration Regulations), namely, that the first appellant genuinely intended to stay temporarily in Australia to carry out the occupation, program or activity for which the visa would be granted.  The delegate, accordingly, refused to grant a visa to the second appellant who had applied for the visa as a family member of the first appellant.

2. On the appellant’s application for review of the delegate’s decision, the Tribunal affirmed the delegate’s decision on a different basis, namely, at the time of the hearing of the Tribunal decision the first appellant did not meet the criteria for the visa under cl 402.221(1)(a)(i)‑(ii) of sch 2 to the Migration Regulations. Pursuant to that regulation, it was a mandatory requirement for the grant of a subclass 402 visa that the first appellant have an approved nomination by an approved occupational training sponsor as at the time of the Tribunal decision. Although a nomination application had been made in respect to the first appellant by an approved occupational training sponsor, that application had been refused by a delegate of the Minister prior to the Tribunal hearing, and no application had been made for the review of the refusal of the nomination application, nor had a further nomination application been made. Thus, at the time of the hearing of the Tribunal, the first appellant did not have an approved nomination by an approved occupational training sponsor and did not meet the mandatory requirement of cl 402.221.

3. In view of the fact that the first appellant did not meet the requirements of cl 402.221 for the grant of the visa, the Tribunal considered it unnecessary to consider whether the first appellant also met the requirements of cl 402.214, as the failure to meet the requirements of cl 402.221 meant that the Tribunal must affirm the decision under review not to grant the first appellant a subclause 402 visa, due to her failure to meet the mandatory criteria for the grant of that visa. The Tribunal, accordingly, also refused to grant a subclass 402 visa to the second appellant as he did not meet the secondary visa criteria to be a member of the family unit of the person who held a subclass 402 visa.

4. The FCC dismissed the review application, finding that as the mandatory criteria in cl 402.221 of the Migration Regulations was not met, the Tribunal was required to dismiss the application, irrespective of whether the criteria in cl 402.214 was satisfied and, accordingly, the Tribunal was not required to consider the criteria in cl 402.214 before it could lawfully decide to affirm the delegate’s decision to refuse the application.

5. The appellants have appealed that decision. Their notice of appeal raises five grounds. Three of those grounds seek to contest the delegate’s decision that the first appellant did not meet the requirements of cl 402.214 of sch 2 to the Migration Regulations.  Of the remaining grounds, one ground alleged procedural unfairness by the Tribunal by making a decision on the visa application prior to making a decision on the nomination application.  That ground is without any merit, because no application was made to the Tribunal to review the refusal of the nomination application, and no further nomination application had been made, or was extant at the time of the Tribunal hearing. 

6. The other ground was directed at that part of the Tribunal’s decision, where the Tribunal noted that the subclass 402 visa was abolished on 19 November 2016 by the Migration Amendment (Temporary Activity Visas) Regulation 2016 (Cth) (Amendment Regulations), which, amongst other things, repealed the criteria for nomination approval in reg 2.72I, with the consequence that a new application for approval would not satisfy cl 402.221, because it would not meet the now repealed criteria in reg 2.72I: see cl 402.221(1)(a)(ii). The FCC found no error, concluding that it was not possible for the first appellant to satisfy cl 402.221 through a new nomination, because the criteria for nomination approval in reg 2.72I of the Migration Regulations had been repealed by reg 2(1) and cls 47 and 124 of sch 1 to the Amendment Regulations. For the reasons given by the FCC, the FCC was correct to hold that any new nomination lodged after 19 November 2016 could not meet the requirements of reg 2.72I, as that regulation had been repealed and, accordingly, that the first appellant could not meet the requirements of cl 402.221 of the Migration Regulations.

7. In view of my conclusions, the three other three grounds do not need to be considered.  For the reasons given, the appeal is without merit and must be dismissed. 

8. The orders of the Court will be:

   (1)The appeal be dismissed.

   (2)The appellants to pay the costs of the first respondent, such costs to be taxed in default of agreement.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Davies.

Associate:

Dated:       9 December 2021