Saini v Minister for Immigration - [2020] FCCA 2271

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAINI & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2271

Catchwords:
MIGRATION – Subclass 187 visa – decision of the Administrative Appeals Tribunal – where employer nomination withdrawn on late notice – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), pt.5, div.5, ss.359AA, 360, 476

Migration Regulations 1994 (Cth), cl.187.233 of Schedule 2

Cases cited:

Bala v Minister for Immigration & Border Protection [2019] FCA 600

Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

First Applicant:

GURWINDER SINGH SAINI

Second Applicant:

JATINDER KAUR SAINI

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 71 of 2020

Judgment of:

Judge Kendall

Hearing date:

17 August 2020

Date of Last Submission:

17 August 2020

Delivered at:

Perth

Delivered on:

20 August 2020

REPRESENTATION

Applicants:

The applicants appeared in person

Counsel for the First Respondent:

Ms J Tran

Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 71 of 2020

GURWINDER SINGH SAINI

First Applicant

JATINDER KAUR SAINI

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicants are citizens of India. The first and second applicant are husband and wife respectively. Both applicants arrived in Australia on 7 August 2009 on a student visa (Court Book (“CB”) 103-108).
On 24 August 2016, the first applicant applied for a Regional Employer Nomination (Permanent) (subclass 187) visa (the “visa”). He applied for the position of “Office Manager” with “Jaguar Facility Services Pty Ltd” (the “sponsor”). The second applicant was included in the visa application as a migrating family member. The applicants were assisted by a migration agent (CB 1-47).
On 9 October 2017, the then Department of Immigration and Border Protection invited the applicants to comment on information that indicated that a decision to refuse the sponsor’s nomination had been made and that, as such, the applicants could not be granted the visa (CB 66-70).
On 27 October 2017, the sponsor sought review of the decision to refuse the nomination at the Administrative Appeals Tribunal (the “Tribunal”) (CB 76-77).
On 3 November 2017, the applicants’ migration agent responded to the invitation to comment. He asked that the visa application remain…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 2271
Decision Date: 20 August 2020

CaseChat Overview and Summary

The applicant, Mr Saini, sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT) concerning his application for a Subclass 187 (Regional Sponsored Migration Scheme) visa. The Minister for Immigration was the respondent. The core of the dispute revolved around the withdrawal of the employer nomination that underpinned Mr Saini's visa application.

The primary legal issue before the Federal Court was whether the AAT had committed a jurisdictional error in its decision-making process. Specifically, the court was required to consider the implications of the employer's withdrawal of its nomination for the visa application and whether the AAT was bound by that withdrawal or had the power to proceed with the application in its absence.

Justice Kendall found that the AAT had not made a jurisdictional error. The court reasoned that the employer nomination was a fundamental prerequisite for the Subclass 187 visa application. Once the nomination was validly withdrawn by the employer, the basis for Mr Saini's visa application ceased to exist. The AAT was therefore correct in concluding that it could not proceed with the application without a valid nomination. The court applied the principle that a visa application is dependent on the underlying nomination, and the withdrawal of the nomination extinguishes the eligibility for the visa.

Consequently, the application for judicial review was dismissed.

Orders