Rani v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 383
•18 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rani v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 383
File number(s): MLG 4246 of 2019 Judgment of: JUDGE MANSINI Date of judgment: 18 March 2025 Catchwords: MIGRATION – application for judicial review of a decision of the then Administrative Appeals Tribunal – where the primary applicant was not subject of an approved employer nomination visa therefore did not satisfy cl.186.223 – application is dismissed with costs Legislation: Migration Act 1958 (Cth) ss. 359A, 360, 474. 476
Migration Regulations (1994) (Cth) cl.186.223
Cases cited: BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443
Craig v South Australia [1995] 184 CLR 163
Plaintiff S157/2002 v Commonwealth of Australia [2003] 211 CLR 476
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123
Division: Division 2 General Federal Law Number of paragraphs: 31 Date of hearing: 11 March 2025 Place: Melbourne Solicitor for the Applicants: Crystal Migration Solicitor for the First Respondent: Sparke Helmore Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 4246 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MEENA RANI
First Applicant
MR SANJIV KUMAR
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
18 MARCH 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent to the proceedings be amended to Minister for Immigration and Multicultural Affairs.
2.The name of the Second Respondent to the proceedings be amended to Administrative Review Tribunal.
3.The application filed on 3 December 2019 is dismissed.
4.The Applicant pay the First Respondent’s costs fixed in the amount of $5,000.
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 Mansini
Before the Court is an application for judicial review of an administrative decision to affirm an earlier decision to refuse the First Applicant an employer nomination visa.
For the reasons that follow, the application is dismissed with costs.
CONTEXT
The First Applicant is a citizen of India.
On 27 February 2017, the First Applicant applied for an employer nomination (subclass 186) visa on the basis of her employment with Travelking (sponsor) in the nominated position of Travel Agency Manager (ANZCO code 142116). The application specified the visa application stream as temporary residence transition. The First Applicant’s husband (the Second Applicant) and her daughter (who is not a party to these proceedings) were included as members of her family unit.
On 1 August 2017, a delegate of the First Respondent refused to grant the sponsor’s nomination application.
Also on 1 August 2017, a delegate of the First Respondent notified the First Applicant that her sponsor’s nomination was refused and afforded 28 days to respond. There is no record of a response.
On 24 October 2017, the delegate refused to grant the visa application subject of these proceedings by reason of the absence of an approved employer nomination.
On 2 October 2019, the Administrative Appeals Tribunal (as it then was) decided to affirm the delegate’s refusal of the sponsor’s nomination application.
On 28 October 2019, the Administrative Appeals Tribunal (as it then was) affirmed the delegate’s decision subject of these proceedings (Tribunal’s decision).
APPLICATION BEFORE THE COURT
On 28 November 2019, an originating application for judicial review of the Tribunal’s decision accompanied by a supporting affidavit was lodged with the Court.
On 8 January 2020, a response was filed on behalf of the First Respondent which contended that the decision of the Tribunal was not affected by jurisdictional error.
Various procedural orders were then made.
On 8 August 2024, the Applicants filed a bundle of documents including identity documents and correspondence relevant to the Applicants’ child and materials otherwise filed in the proceedings.
On 18 September 2024, the Court made orders which invited the Applicants to file any amended application with proper particulars of the grounds of the application, an outline of written submissions and any additional evidence on which they sought to rely by 21 October 2024. They did not do so by that time.
On 4 November 2024, the First Respondent filed an outline of submissions and a list of authorities.
The matter was listed for hearing before the Court on 11 November 2024 but, on application of the Applicant’s representative made 11 November 2024, was adjourned on that day. The Applicants’ representative (who, at that stage, had not filed any materials pursuant to the 18 September 2024 orders) confirmed they did not seek to amend the grounds of the substantive application as to jurisdictional error and was given further opportunity to file any further affidavit evidence and submissions in support of the application and on which they sought to rely at final hearing.
On 11 February 2025, the First Applicant filed an affidavit, an outline of submissions and a list of authorities.
On 24 February 2025, the First Respondent filed responsive submissions and confirmed continued reliance on their submissions of 4 November 2024.
The matter proceeded to hearing before the Court as presently constituted on 11 March 2025. The matter was heard concurrent with that of the sponsor (in MLG3912/2019). The First Applicant and the sponsor attended and were represented by a solicitor advocate. The First Respondent was also represented by a solicitor advocate.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s.474 of the Migration Act 1958 (Cth) (Act) is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s.476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia [2003] 211 CLR 476 (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ) at [76].
The task on judicial review is not to undertake a general review of the decision or substitute it with a decision which the Court considered ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error. And, where appropriate, to order that the matter be remitted and reconsidered according to law: see Craig v South Australia [1995] 184 CLR 163 (Brennan, Deane, Toohey, Gaudron and McHugh JJ) as cited in BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443 (Kelly J) at [19]-[20].
The grant of an employer nomination visa is subject to the requirements of cl.186.223 of the Migration Regulations (1994) (Cth) (Regulations) which, at the relevant times, provided that:
186.223
(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 subregulation 5.19(3); and
(b) in relation to which the applicant is identified as the holder of a Subclass 457 … visa; 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.
CONSIDERATION
By the substantive application lodged on 28 November 2019, there were 3 points under the heading “grounds of application” as follows:
1.A subclass 186 Employer Nomination Visa was refused by the Department of Home Affairs
2.The Administrative Appeals Tribunal Affirmed the decision based on the grounds of affirming associated 186 nomination
3.We are therefore seeking the for this decision to be quashed and for the 186 visa application to be re-considered by the administrative Appeals Tribunal
(sic.)
None of those points constitute or articulate grounds of judicial review. The first and second points are properly characterised as a summary of the factual context and the third point is a summary of the outcome or relief sought by the application.
By the First Applicant’s unopposed evidence, the Applicants were understood to contend that:
(a)The delegate erred in their refusal to approve the sponsor’s nomination of the First Applicant due to the fact that the nomination associated with the application was erroneously refused under the incorrect stream of direct entry where the nomination was submitted under the temporary residence stream; and
(b)The Tribunal’s sponsor nomination refusal was incorrect because the First Applicant never lodged or gave any indication that this was a direct entry visa application and it was the delegate’s decision under that stream that the Tribunal reviewed which resulted in the visa refusal.
To the extent that the Applicants sought to challenge the delegate’s decision, that decision is not amenable to review by this Court and could not succeed even if properly pleaded.
To the extent that the Applicants sought to challenge the Tribunal’s decision to refuse the employer’s sponsor nomination, consistent with the Full Federal Court of Australia’s guidance in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123 (Charlesworth, O’Sullivan and Raper JJ) at [73]-[101], that is not a matter which the First Applicant or the Second Applicant have standing to challenge.
The Tribunal’s decision was brief but made clear that the dispositive issue in the present case was that the First Applicant was not the subject of an approved employer nomination and therefore her visa application did not satisfy the mandatory conditions of cl.186.223(2) of Schedule 2 to the Regulations: see [16] of the Tribunal’s decision. In so finding, the Tribunal correctly applied the criteria applicable to the temporary residence transition stream consistent with the application subject of the review: where the Tribunal also noted no claims had been made in respect of any other streams, see [18] of the Tribunal’s decision.
There is no discernible failure to afford procedural fairness in the present case. The Tribunal invited the Applicants to give evidence and present arguments at hearing convened jointly with that of the sponsor. Then, after the sponsor’s nomination was refused, the Tribunal appropriately notified the Applicants and invited them to comment or respond, which invitation gave information about the issue which would be the reason for affirming the decision under the review and explained the relevance and consequences. On the face of the documents before the Court, the Tribunal complied with the requirements of ss.359A and 360 of the Act (as in force at the relevant times).
Jurisdictional error is not made out in the present case.
CONCLUSION
For the above reasons, the application is dismissed with costs fixed in the amount of $5,000 which is less than the scale amount for final hearing at Schedule 2 of the Regulations.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 18 March 2025
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