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

[2022] FedCFamC2G 244

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Manandhar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 244  

File number(s):	SYG 1022 of 2021
Judgment of:	JUDGE EGAN
Date of judgment:	29 April 2022
Catchwords:	MIGRATION – Failure by first 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 Regulations 1994 (Cth): Clause 186.223
Division:	Division 2 General Federal Law
Number of paragraphs:	9
Date of last submission/s:	22 March 2022
Date of hearing:	5 March 2022
Place of Hearing	Sydney
Counsel for the Applicants:	Mr G Manandhar
Solicitor for the First Respondent:	Sparke Helmore
Solicitor for the Second Respondent:	Submitting appearance save as to costs

ORDERS

SYG 1022 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

GAURAV MANANDHAR

First Applicant

RANJANA SHRESTHA MANANDHAR

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINSITRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	29 APRIL 2022

THE COURT ORDERS THAT:

1.The Originating Application for Review filed on 4 June 2021 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 $6,500.00.

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

1. The first applicant is a citizen of Nepal who applied for an Employer Nomination (Permanent) (Subclass 186) Visa on 1 August 2017. The second applicant applied for the visa as a member of the first applicant’s family unit.

2. It was a necessary pre-condition for the grant to the first applicant of the visa that there was an approved employer nomination application in place.

3. Clause 186.223 of the Migration Regulations 1994 (Cth) (‘the Regulations’) relevantly provided as follows:

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

   (a)        nominated in an application for approval that:

   (i)        identifies the applicant in relation to the position; and

   (ii) is made in relation to a visa in a Temporary Residence Transition stream; and

   (c) in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

   (2)       The Minister has approved the nomination.

   (3)       The nomination has not subsequently been withdrawn.

   (3A)     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.

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

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

4. The visa application made by the first applicant was for the position of Café or Restaurant Manager (ANZSCO 141111). The nomination submitted by Kathmandu Delicious Pty Ltd was refused. Accordingly, on 29 June 2021, the Administrative Appeals Tribunal (‘the Tribunal’) handed down written reasons refusing the visa application made on behalf of the first applicant.

5. The Tribunal affirmed the decision of the delegate because there was no evidence before it that the necessary criteria had been met. There was no evidence before the Court that the Tribunal had erred in that finding.

6. The first 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.

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

8. The Originating Application for Review is without merit and is dismissed.

9. The Court will hear the parties as to costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       29 April 2022