Nangan v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 332
•16 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nangan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 332
File number(s): BRG 526 of 2023 Judgment of: JUDGE EGAN Date of judgment: 16 April 2024 Catchwords: MIGRATION LAW – where there was no approved nomination application – where the visa application made on behalf of the first applicant was conditional upon the Minister having approved the nomination application – where the application for review had no prospects of success – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss. 65, 351.
Migration Regulations1994 (Cth) (the Regulations) cl 187.233
Division: Division 2 General Federal Law Number of paragraphs: 11 Date of last submission/s: 9 April 2024 Date of hearing: 9 April 2024 Place: Brisbane Applicant: R. Nangan appearing on her own behalf Solicitor for the First Respondent: L. Helsdon, Sparke Helmore Second Respondent: Submitting appearance, save as to costs. ORDERS
BRG 526 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: REYNA NANGAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
16 APRIL 2024
IT IS ORDERED THAT:
1.The Application for Review filed on 18 October 2023 be dismissed.
2.The First and 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
The first applicant was a citizen of the Republic of the Philippines who on 12 August 2016 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 applicant was the first applicant’s husband, and the third applicant was the child of the first and second applicants.
At the time of the making of the application, Class RN contained only one subclass, namely Subclass 187 (regional sponsored migration scheme).
The relevant nominator in respect of the applicant’s visa nomination was a company named 63 Racecourse Rd Pty Ltd. It was a precondition for the grant of the applicant’s visa that the Minister had approved the relevant nomination made by Racecourse Rd Pty Ltd. In that regard, Clause 187.233 of Sch 2 to the Migration Regulations1994 (Cth) (the Regulations) relevantly provided as follows:
187.223
(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 the Temporary Residence Transition stream; and
(c) 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 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 to which the application relates is located in regional Australia.
(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.
It was not in dispute at the time of the hearing before the Court that the nomination application had been refused on 15 January 2020, and that the nominator company had not sought review of that refusal decision.
In circumstances where a precondition for the grant to the applicant of a visa had not been met, there was no jurisdictional error on the part of the Administrative Appeals Tribunal (the Tribunal) in affirming the decision of the delegate of the Minister in their refusal of the visa application.
The grounds of review as set out in the Application for Review filed on 18 October 2023 lack merit because they ignore the fact that an essential precondition for the grant to the applicant of a visa had not been met. The Court does not, therefore, intend to address those grounds.
By reason of the fact that the first applicant’s application for review is without merit, the applications made on behalf of the second applicant and the third applicant as family members are similarly without merit, as they were dependent upon the success of the first applicant’s application for review.
It is noted by the Court that the applicant had requested that the Tribunal refer the case to the Department for consideration by the Minister of the exercise by the Minister of the discretion conferred pursuant to s. 351 of the Act. It is understood that the Tribunal has made such referral to the Department and that a decision is pending.
For the above reasons, the Court finds that the application for review is without merit and is dismissed.
No jurisdictional error has been established on the part of the Tribunal.
The Court will hear the parties as to costs.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 11 April 2024
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