Mali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 1038
•15 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 1038
File number(s): BRG 537 of 2021 Judgment of: JUDGE EGAN Date of Judgment: 15 October 2024 Catchwords: MIGRATION LAW – Where it was a pre-condition for the grant of the visa that there was a valid nomination – where there was no valid nomination – application for review futile – application dismissed. Division: Division 2 General Federal Law Number of paragraphs: 10 Date of hearing: 14 October 2024 Place: Brisbane Counsel for the Applicants: Mr L. Boccabella Solicitor for the Applicants: AJ Torbey & Associates Solicitor for the First Respondent: Ms Helsdon of Sparke Helmore Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
BRG 537 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BISHNU DEVI MALI
First Applicant
MAHESH LAL SHRESTHA
Second 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:
15 OCTOBER 2024
IT IS ORDERED THAT:
1.The name of the First Respondent be changed to “Minister for Immigration and Multicultural Affairs”.
2.The Originating Application for Review filed on 28 November 2021 be 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 EGAN
INTRODUCTION
The female applicant made application for an Employer Nomination (Permanent) (Class EN) Visa on 28 June 2017. The male applicant made application for a visa as a member of the female applicant’s family unit. The success or otherwise of the male applicant’s visa application was dependent upon the success of the female applicant’s visa application.
On 20 June 2018, a delegate of the Minister refused the visa applications.
Upon review of the decision of the delegate, the Administrative Appeals Tribunal (“the Tribunal”) affirmed the decision of the delegate by written reasons dated 24 August 2021. That decision was made on the basis that there was no approved nomination in respect of the female applicant’s employment position. The Tribunal had on 24 August 2021 earlier affirmed the decision of the delegate in respect of the nomination application.
The nominor company in respect of the visa applicant’s employment position was Khana Peena Pty Ltd as trustee for RSA Family Trust. That company filed an Originating Application for Review of the decision of the Tribunal on 27 September 2021.
The applicants filed an Originating Application for Review of the decision of the Tribunal on 28 November 2021.
Earlier today, it was ordered by this Court that the Application for Review filed on behalf of Khana Peena Pty Ltd be dismissed. As a result of that order, there is no valid nomination in place to support the female applicant’s visa application, and accordingly, the Application for Review filed on behalf of the female applicant must be dismissed because an essential pre-condition for the grant of the visa does not exist.
The Application for Review is accordingly dismissed.
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The grounds of review are without merit and are 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: 15 October 2024
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