Kaur v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs
[2022] FedCFamC2G 268
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FedCFamC2G 268
File number(s): MLG 1405 of 2020 Judgment of: JUDGE EGAN Date of judgment: 14 April 2022 Catchwords: MIGRATION – Failure by first named 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: Migration Act 1958 (Cth): s 65
Migration Regulation 1994 (Cth): cl 187.233
Division: Division 2 General Federal Law Number of paragraphs: 10 Date of last submission/s: 6 April 2022 Date of hearing: 6 April 2022 Place: Brisbane Applicant: Mr Kaur as a self-represented litigant Solicitor for the First Respondent: HWL Ebsworth Lawyers Second Respondent: Submitting appearance save as to costs ORDERS
MLG 1405 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAJWINDER KAUR
First Applicant
RANDEEP SINGH DAB
Second Applicant
EKAMBIR SINGH
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFIARS
First Respondent
ADMINSTRAIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
14 APRIL 2022
THE COURT ORDERS THAT:
1.The Originating Application for Review filed on 30 April 2020 be dismissed.
2.The First Applicant and the Second Applicant pay the First Respondent’s costs of and incidental to the Originating Application for Review fixed in the amount $5,600.00.
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
The first named applicant applied for a Regional Employer Nomination (Permanent) (Class RN) Visa pursuant to the provisions of s 65 of the Migration Act 1958 (Cth) (the Act). The second and third named applicants applied for the visa as members of the first applicant’s family unit.
On 14 January 2019, the delegate refused to grant the visa because the applicant was not the subject of an approved nomination as was required under the criteria set out in clause 187.233 of schedule 2 to the Migration Regulation 1994 (Cth) (the Regulations). The delegate also found that the second and third named applicants were not eligible for the grant of a visa to them because of the failure of the first applicant to meet the clause 187.233 criteria.
On 30 January 2019, the applicants applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decision of the delegate.
At the hearing before the Tribunal on 17 March 2020, the applicants were represented by a registered migration agent. The first applicant had indicated that she did not require the assistance of an interpreter.
At [13] – [20] inclusive of its reasons, the Tribunal set out its rationale for refusing to grant the visa to the applicants as follows:
“[13]Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.
[14] 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.
[15] The applicant attended the hearing on the 17 March 2020. It was a combined hearing regarding the nomination refusal. The Tribunal explained that, to meet cl.187.233, the applicant must be the subject of an approved nomination. It explained that the review of the nomination refusal must be finalised before the decision in this case could be made. The Tribunal advised that it would write to the applicant advising of the decision.
[16]On the 6 April 2020, the Tribunal affirmed the decision refusing the approval of the nomination made by RMAN Australia Pty Ltd in respect of the applicant. As the nomination has been refused, the applicant does not satisfy cl.187.233(3) and as such cl.187.233 is not met.
[17]On 7 April 2020, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. The information related to the Tribunal’s decision to affirm the decision not to approve the nomination made by RMAN Australia Pty Ltd, which the Tribunal explained was relevant to the applicants meeting cl.187.233(3) which requires the nomination to be approved. As the nomination has been refused, cl.187.233(3) is not met.
[18]The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 21 April 2020, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement they might otherwise have had under the Act.
[19]The review applicants have not provided the comments within the prescribed period and no extension has been granted. In these circumstances, pursuant to s.359C(2) the Tribunal has decided to proceed to decision without taking further steps to obtain the comments.
[20] On the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl 187.233(3) of Schedule 2 to the Regulations.”
There was no evidence before this Court that would justify a finding that the Tribunal had erred in the way in which it had considered the matter before it.
The first named 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.
The applicants have failed to establish jurisdictional error on the part of the Tribunal.
The Originating Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 14 April 2022
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