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

[2021] FCCA 609

FEDERAL CIRCUIT COURT OF AUSTRALIA

Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 609

File number(s):	ADG 388 of 2019
Judgment of:	JUDGE EGAN
Date of judgment:	29 March 2021
Catchwords:	MIGRATION – application for regional employer nomination visa – withdrawal of nomination application – failure by first applicant to meet an essential primary criteria – visa unable to be granted – no jurisdictional error established – application dismissed.
Legislation:	Migration Regulations 1994 (Cth), Sch 2, cl 187.233.
Number of paragraphs:	10
Date of last submission/s:	26 March 2021
Date of hearing:	26 March 2021
Place:	Brisbane
Applicants:	The First Applicant appearing in person on behalf of the Applicants
Solicitor for the First Respondent:	Mr Cummings of Sparke Helmore
Second Respondent:	Submitting appearance save as to costs

ORDERS

ADG 388 of 2019

BETWEEN:

ARUN KUMAR

First Applicant

SAVITA RANI

Second Applicant

YUVRAJ RAJPAL (and another named in the Schedule)

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:	29 MARCH 2021

IT IS ORDERED THAT:

1.The Originating Application for Review filed on 21 October 2019 be dismissed.

2.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 $5,000.

REASONS FOR JUDGMENT

JUDGE EGAN:

1. The first applicant is a citizen of India who applied for a Regional Employer Nomination (Class RN) (Subclass 187) (Direct Entry Scheme) Visa on 29 August 2017. The nominating employer was Goodwill Business Pty Ltd (sponsor). The position the subject of the application was that of a travel agency manager. The first applicant’s wife and children were included in the application. The success of their applications was dependent upon the success of the first applicant’s application.

2. The nomination application made by Goodwill Business Pty Ltd was refused by a delegate of the Minister. Upon review of that decision, the Tribunal affirmed the decision of the delegate. By an Originating Application for Review filed in this Court in ADG 368 of 2019 on 10 October 2019, the company sought review of the decision of the Tribunal.

3. At the hearing before this Court on 26 March 2021 of the Application for Review filed by Goodwill Business Pty Ltd, the lawyer for the company withdrew the company’s application for the review of the Tribunal’s refusal of the nomination application. As a result of such withdrawal, the company’s application for review was then dismissed.  

4. When the subject matter was called on for hearing, Mr Kumar, the first applicant, was advised that the Application for Review filed on behalf of Goodwill Business Pty Ltd had been withdrawn and that, accordingly, the Application for Review had been dismissed. When asked if he wished to proceed with his Application for Review notwithstanding the dismissal of the Application for Review filed by Goodwill Business Pty Ltd, the first applicant indicated that he did wish to proceed.

5. Clause 187.233 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) sets out the relevant criteria which must be met by the first applicant as a condition for the grant to him of the visa. Clause 187.233 of the Regulations relevantly provided as follows:

   “187.233

   (1)       The position to which the application relates is the position:

   (a)  nominated in an application for approval that seeks to meet the requirements of:

   (i)        subparagraph 5.19(4)(h)(ii); or

   (ii)       subregulation 5.19(4) as in force before 1 July 2012; and

   (aa)  in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.

   (4A)     Either:

   (a)  there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

   (b)  it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

   (5)       The position is still available to the applicant.

   (6)  The application for the visa is made no more than 6 months after the Minister approved the nomination.”

6. It is clear that in order for the first applicant’s visa application to be successful, the nomination application must have been approved. It is also clear that in circumstances where the company Goodwill Business Pty Ltd has had its Application for Review of the refusal of the nomination application dismissed by order of this Court, the first applicant could not succeed in his visa application. His decision to nonetheless proceed with his Application for Review before this Court was accordingly futile.

7. The Court agrees with the decision of the Administrative Appeals Tribunal (‘the Tribunal’) that the first applicant did not meet the primary criteria for the grant of the visa and that, as a result, the secondary applicants did not meet the secondary criteria for the grant of their visas. The Tribunal did not err in so finding.

8. The applicants have failed to establish jurisdictional error on the part of the Tribunal.

9. The Application for Review is without merit and is dismissed.

10. 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:       29 March 2021

SCHEDULE OF PARTIES

ADG 388 of 2019
Applicants
Fourth Applicant:	LAVANYA RAJPAL