Lacina v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 737
•15 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lacina v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 737
File number: PEG 240 of 2023 Judgment of: JUDGE LADHAMS Date of judgment: 15 August 2024 Catchwords: MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal affirming a decision to refuse to grant the applicants Temporary Skill Shortage (Class GK) visas – where the Tribunal found that there was no approved nomination in respect of the position for which the visa was sought – where the sponsor separately sought judicial review of a decision of the Tribunal affirming the refusal of the nomination application – where the sole ground of application is based on an assertion of jurisdictional error in the decision relating to the nomination application – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) s 476
Migration Regulations 1994 (Cth) Sch 2 cl 482.212
Cases cited: Lacina Wood Art Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 736
Mora v Minister for Immigration and Border Protection [2018] FCA 1819
Division: Division 2 General Federal Law Number of paragraphs: 9 Date of hearing: 14 June 2024 Place: Perth Counsel for the Applicants: Ms S Frankel Solicitor for the Applicants: Estrin Saul Lawyers Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 240 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VOJTECH LACINA
First Applicant
ZDENKA RUSINOVA
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
15 AUGUST 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
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 LADHAMS:
The applicants are a non-citizens who applied for Temporary Skills Shortage (Medium Term) (Subclass 482) visas (visa) on 11 September 2019. The first applicant is the primary visa applicant and he was sponsored in his application for the visa by Lacina Wood Art Pty Ltd (sponsor), of which the first applicant is the sole director, owner and employee. The second applicant was included in the visa application as a member of the same family unit.
On 17 October 2019 the sponsor’s nomination application in respect of the position of cabinet maker, which was the position for which the sponsor sponsored the first applicant, was refused by a delegate of the Minister. The Minister’s Department wrote to the applicants on 17 October 2019 inviting them to comment on the information that the sponsor’s nomination application had been refused. The applicants did not respond to the invitation. On 18 November 2019 a delegate of the Minister refused to grant the applicants visas.
The applicants applied to the Administrative Appeals Tribunal (Tribunal) for merits review of the delegate’s decision. The sponsor also applied for merits review of the decision refusing their nomination application. On 20 September 2023 the Tribunal affirmed the delegate’s decision to refuse the sponsor’s nomination application and on the same day the Tribunal also affirmed the delegate’s decision to refuse to grant the applicants the visas.
In its decision in relation to the applicants, the Tribunal was not satisfied that the requirements of cl 482.212(1) of Sch 2 to the Migration Regulations 1994 (Cth) were met. That clause required that the nomination identified in the visa application was approved, was made by a person who was an approved work sponsor at the time of the visa and had not ceased. The Tribunal found that the sponsor did not have an approved nomination in place.
By an application filed on 21 October 2023, the applicants seek judicial review of the Tribunal decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act). The sponsor also filed an application for judicial review in relation to the Tribunal’s decision affirming the decision not to approve the nomination application. I have addressed the sponsor’s judicial review application in Lacina Wood Art Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 736 (Lacina Wood Art).
The applicants in the present application rely on the following ground:
The Second Respondent’s decision was affected by jurisdictional error in that it was based on a purported decision by the Second Respondent (differently constituted) dated 20 September 2023.
Particulars
a.The purported decision of the Second Respondent (differently constituted) dated 20 September 2023 is subject to pending judicial review by this Court. If this Court issues writs of certiorari and mandamus in relation to that matter, then at the time of the Second Respondent’s decision, an application for review of a decision not to approve nomination under s.140GB of the Migration Act 1958 (Cth) will not have been finally determined.
b.It follows that the Second Respondent’s finding (in the decision which is the subject of this application) that the First Applicant did not meet subclause 482.212(1) of Schedule 2 to the Migration Regulations 1994 (Cth) was also affected by jurisdictional error.
Both parties agreed that the outcome of this judicial review application will turn on the outcome of the sponsor’s judicial review application. This is consistent with the observations of Collier J in Mora v Minister for Immigration and Border Protection [2018] FCA 1819, where her Honour said at [55]:
…in my view, it is illogical that the visa decision could be valid notwithstanding the invalidity of the nomination decision. I take this view for the following reasons:
·Decisions relating to nominations and the grant or refusal of visas within this particular statutory context are inextricably linked. … Although only criterion for the grant of a 457 visa, being the subject of an approved nomination is an essential aspect of a successful application for a 457 visa and a significant part of the consideration of the relevant decision-maker…
·As a matter of fairness and logic, because the appellants have been successful in challenging the nomination decision, and the visa decision was made on the basis of that nomination decision, the visa decision should not stand. In this regard I also note that if it were the case that the visa decision remained valid and in force notwithstanding jurisdictional error in the nomination decision, an order quashing the nomination decision and remitting it for consideration by the Tribunal would essentially have no effect, and indeed no operation in relation to the purpose for which the application was made — being relevant in these circumstances to the employment of the first appellant by the Trust.
In the present matter the decision relating to the visa application and the decision relating to the refusal of the sponsor’s nomination application are also inextricably linked.
In Lacina Wood Art I found that the Tribunal’s decision to affirm the refusal of the sponsor’s nomination application was not affected by jurisdictional error. It follows that I also find that there is no jurisdictional error in relation to the Tribunal’s decision the subject of this judicial review application. The application for judicial review is therefore dismissed.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 15 August 2024
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