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

[2022] FedCFamC2G 302

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 302

File number(s):

SYG 1009 of 2021

Judgment of:

JUDGE EGAN

Date of judgment:

28 April 2022  

Catchwords:

MIGRATION – Failure by applicant to establish that there was an approved employer nomination in place – failure to establish an entitlement to the grant of a visa – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss. 65 and 359AA.

Migration Regulations 1994 (Cth) r. 5.19(4)(d) and cl. 187.223 of Sch. 2.

Division:

Division 2 General Federal Law

Number of paragraphs:

11

Date of last submission/s:

27 April 2022

Date of hearing:

27 April 2022

Place:

Brisbane

Solicitor for the Applicant:

Mr H Singh as a Self-Represented Litigant

Solicitor for the First Respondent:

Minter Ellison

Second Respondent:

Submitting appearance save as to costs

ORDERS

SYG 1009 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

HARMANMEET SINGH

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	28 APRIL 2022

IT IS ORDERED THAT

1.The Originating Application for Review filed on 3 June 2021 be dismissed.

2.The Applicant pay the First Respondents costs of and incidental to the Application for review, fixed in the amount of $6,100.00.

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 applicant is a citizen of the Republic of India who on 20 September 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).

2. On 3 April 2018, a delegate of the Minister refused to grant the visa because the nominator (Sardar Saab Enterprises Pty Ltd) was considered not to have demonstrated that it had the financial capacity to employ the applicant on a full-time basis over a two (2) year period pursuant to the provisions of r. 5.19(4)(d) of the Migration Regulations 1994 (Cth). Regulation 5.19(4)(d) relevantly provided as follows:

   “r. 5.19 Approval of nominated positions – Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa

   …

   (4) The requirements to be met for the nomination to be approved are as follows:

   …

   (d) the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.”

3. The nominator sought review by the Administrative Appeals Tribunal (‘the Tribunal’) of a decision of a delegate of the Minister to refuse its employer nominations in respect of the applicant and other nominees.

4. During the course of the Tribunal hearing in respect of the nomination applications made by Sardar Saab Enterprises Pty Ltd, the Tribunal asked the nominator whether it wanted the adjournment of such nomination hearings so as to enable the nominator to assess its position. The Tribunal advised the nominator that it was in receipt of certain information relating to the carrying on of the nominator’s business in that regard.

5. Having received advice, at a resumed hearing on 15 January 2021, the nominator advised the Tribunal that it wished to withdraw its nomination application in respect of the applicant, as well as in respect of its other nominations.

6. At [19] – [21] of its reasons, the Tribunal set out how it had advised that it had given notice to the applicant pursuant to the provisions of s. 359AA of the Act. The Tribunal said as follows:

   “[19]On 22 January 2021 pursuant to s359AA, the Tribunal wrote to the nominee to advise that the application for approval of the nominated position made by the nominator was refused by a delegate of the Minister for Immigration and that having sought a review of that decision, the nominator had now withdrawn that application for review. The nominee was also advised that approval of the nominator’s application for the nominated position was relevant to the review because it is a requirement for the grant of the visa that the position specified in this application be the subject of an approved nomination. Further the nominee was advised that in conducting the review, the Tribunal is required by the Migration Act 1958 to invite the nominee to comment on or respond to this information which the Tribunal considers would, subject to the nominee’s comments or response, be the reason, or a part of the reason, for affirming the decision under review.

   [20]On 11 February 2021, the Tribunal wrote to the nominee inviting him to attend a hearing at the Tribunal on 26 February 2021 to give evidence and present arguments relating to the issues arising in this case.

   [21]On 26 February 2021, the nominee appeared before the Tribunal. The nominee representative Ms Han was in attendance.”

7. A necessary pre-condition for the grant of the visa to the applicant was that the nomination had been granted, and if granted, that it had not subsequently been withdrawn. Clause 187.223 of Schedule 2 to the Regulations was relevantly 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.”

8. The fact that the nomination in the present matter was not the subject of Ministerial approval, and that it had been withdrawn, was fatal to the grant of the application for the visa to the applicant.

9. The applicant has failed to establish jurisdictional error on the part of the Tribunal.

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

11. 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:       28 April 2022