Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 247
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 247
File number(s): SYG 1020 of 2021 Judgment of: JUDGE EGAN Date of judgment: 14 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 Act 1958 (Cth: s. 65
Migration Regulations 1994 (Cth): Cl 187.223
Division: Division 2 General Federal Law Number of paragraphs: 11 Date of last submission/s: 18 March 2022 Date of hearing: 4 March 2022 Place: Brisbane Applicant: Mr Singh as a self-represented litigant Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance save as to costs ORDERS
SYG 1020 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HARPARTAP SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
14 APRIL 2022
THE COURT ORDERS THAT:
1.The Originating Application for Review filed on 3 June 2021 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the Originating 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 Applicant is a citizen of the Republic of India who made application for the grant to him of a Regional Employer Nomination (Permanent) (Class RN) Visa on 15 October 2016 pursuant to the provisions of s. 65 of the Migration Act 1958 (Cth) (‘the Act’).
The applicant sought the visa in the direct entry stream so as to enable him to work in the nominated position of Restaurant Manager (ANZSCO 141111).
It was a necessary pre-condition for the grant of the visa to the applicant that the nomination application made in respect of the applicant by Sardar Saab Enterprises Pty Ltd was approved by the Minister. Clause 187.223 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 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.”
At [5] of its reasons, the Tribunal found as follows:
“[5]On 4 May 2018, the Department refused to grant the visa because the nominator Sardar Saab Enterprises Pty Ltd did not demonstrate that it had the financial capacity to employ the nominee on a full-time basis in the position for at least 2 years as required under regulation 5.19(4)(d). On the basis of the Department's decision, the applicant could therefore not satisfy cl.187.223, which requires that the nominee be the subject of an approved nomination.”
At [19] – [21] inclusive of its reasons, the Tribunal considered the refusal of the nomination application and found as follows:
“[19]On 21 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 4 February 2021, the Tribunal received a response from the applicant's representative to advise only that the nominee did not wish to withdraw his application.
[21]For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.”
On 21 January 2021, the Tribunal wrote to the applicant and advised him that the relevant nomination application had been refused, and that such application needed approval prior to the grant to the applicant of the visa sought by him. The applicant nevertheless advised that he intended to proceed with his application for review.
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.
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.
The applicants have failed to establish jurisdictional error on the part of the Tribunal.
The Originating Application for Review is without merit and is dismissed.
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: 14 April 2022
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