Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1378
•21 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1378
File number: PEG 285 of 2020 Judgment of: JUDGE KENDALL Date of judgment: 21 June 2021 Catchwords: MIGRATION – Regional Employer Nomination visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider evidence – whether the Tribunal adhered to the requirements of s 359AA(b) of the Act – whether the applicant was denied procedural fairness – whether the applicant was given a “real opportunity” before the Tribunal – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 359AA, 476
Migration Regulations 1994 (Cth), cl 187.233
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 16
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 & Border Protection [2017] FCAFC 105
Singh v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 726
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Number of paragraphs: 82 Date of hearing: 17 June 2021 Place: Perth Applicant: In person Counsel for the First Respondent: Ms C Juarez Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
PEG 285 of 2020 BETWEEN: KARAMJEET SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
21 JUNE 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
REASONS FOR JUDGMENT
JUDGE KENDALL
The applicant is a citizen of India. He arrived in Australia in February 2015 on a student visa (Court Book (“CB”) 40-42).
On 21 June 2016, the applicant applied for a Regional Employer Nomination (subclass 187) visa (the “visa”) (CB 18-28). He nominated the position of “Retail Manager (General)” (CB 22). His sponsor (his “nominator” by way of separate nomination application which was refused on 16 January 2018) was Lotfi & Shams Investments Pty Ltd.
On 16 January 2018, the applicant was invited by the then Department of Immigration & Border Protection (the “Department”) to comment on the following information received by the Department (CB 104-107):
Nomination refused
The nomination submitted to the department by Lotfi & Shams Investments Pty Ltd listing you as their Nominee has been refused. Unfortunately this means that your visa application cannot be approved.
No response was received from the applicant.
On 15 February 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 113-115). The delegate was not satisfied that the applicant met cl 187.233 of the Migration Regulations 1994 (Cth) (the “Regulations”) as the applicant “was not the subject of an approved nomination”.
The applicant applied for review of the delegate’s decision by the Administrative Appeals Tribunal (the “Tribunal”) on 1 March 2018 (CB 116-117).
On 24 November 2019, the applicant’s migration agent provided documents to the Tribunal (CB 139-144). The material included various letters of appreciation from the applicant’s sponsor and other employment records.
On 7 September 2020, the applicant’s migration agent provided written submissions to the Tribunal (CB 185-200).
On 9 September 2020, the applicant attended a hearing before the Tribunal (CB 201-206). His sponsor also attended as the hearing was a combined hearing – that is the Tribunal dealt with both the sponsor’s nomination application and the applicant’s visa application together (as is now the standard practice at the Tribunal).
The Tribunal affirmed the delegate’s decision to refuse the nominator’s application. Later that same day, the Tribunal also affirmed the delegate’s decision not to grant the applicant the visa (CB 213-217). As discussed below, the Tribunal did so on the basis that there was no approved nomination.
On 5 October 2020, the applicant applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal’s decision is affected by jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is 5 pages long and spans 23 paragraphs.
The Tribunal began by identifying the type of visa under review. It noted that the applicant sought to satisfy the criterion in the Direct Entry Stream in the nominated position of Retail Store Manager. The Tribunal summarised the delegate’s decision and confirmed that the applicant had appeared at a hearing before the Tribunal via Microsoft Teams with his sponsor (the nominator) and their registered migration agent (at [1]-[8]).
The Tribunal identified that the issue in the case was whether the applicant had “an approved nomination” (at [10]).
The Tribunal explained that cl 187.233 of the Regulations requires that, among other things, an applicant must be the subject of an approved nomination (at [11]-[12]). The Tribunal noted that the position nominated by the sponsor was the position of Retail Store Manager (at [13]).
The Tribunal was satisfied that the applicant’s sponsor was the nominator and that the applicant met cl 187.233(2) of the Regulations (at [14]).
The Tribunal continued:
15. On 9 September 2020 the Tribunal decided to affirm the decision under review in respect of the nomination under r.5.19(4) in the related case-file number 1802580 for the reasons set out in the Decision Record of that date refusing the nomination.
16. In accordance with the procedure under s.359AA of the Act the Tribunal put to the applicant at the hearing that it wished to discuss information that, subject to his response, would be the reason or part of the reason, for affirming the decision to refuse the Subclass 187 visas. The Tribunal explained that the applicant would be asked to respond to this information and could seek additional time to comment on, or respond to the information, which the Tribunal would consider.
17. The Tribunal put to the applicant that in circumstances where the Tribunal affirmed the decision refusing approval of the nomination of the position to which the application relates, the applicant would not be able to meet essential criteria to satisfy cl.187.233 for the Subclass 187 visa. The Tribunal explained to the applicant that this information is relevant to the review because without evidence of approval of the relevant nomination for the position, the applicant could not satisfy the provisions of cl.187.233(3) of the Regulations for the grant of the Subclass 187 visa.
18. The applicant responded straight away to the Tribunal stating that he understands that in circumstances where there is no approved nomination, the visa cannot be granted to him. The Tribunal accepts that the applicant understands that an approved nomination for the position is one of the essential criteria for the grant of the Subclass 187 visa sought.
The Tribunal continued:
19.As aforementioned, on 9 September 2020 the Tribunal affirmed the decision to refuse the nomination of the position. The Tribunal has not returned the matter for any further evidence or submissions as in these circumstances, and in view of authority in the case of VARSI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1280 (paragraphs 51-58) it would be ‘futile’ as ‘no useful result could ensue’ because the Subclass 187 visas cannot be granted in the absence of an approved nomination in respect of the applicant. The Tribunal is satisfied that there is no practical injustice in not returning the matter to the Tribunal following the decision to refuse the nomination and accepts the oral submissions made on behalf of the applicant at the hearing that concur with this.
20. Having considered the available evidence before it, the Tribunal is satisfied that the position of Retail Store Manager (ANZSCO 142111) is the subject of the relevant r.5.19 nomination application that seeks to meet the requirements of subparagraph 5.19(4)(h)(ii) relating to that position. The Tribunal has no evidence before it that the nomination is approved to satisfy the requirement of cl.187.233(3) for the Direct Entry stream. The Tribunal finds that the nomination of the position to which the application relates is not approved.
21. Therefore, cl.187.233 is not met.
On the basis of the above, the Tribunal affirmed the decision not to grant the applicant the visa (at [22]-[23]).
PROCEEDINGS IN THIS COURT
The applicant’s judicial review application was filed on 5 October 2020. It contains four “grounds of review” as follows (without alteration):
1.The AAT was wrong because they did not properly and genuinely consider my evidence and circumstances.
2.I did not request an extention of time because i was told my nominator had requested already.
3.I did not know i could not seek an extention of time after the time limit passed. Bcause of this it was unfair to not to give me more time to respond.
4.I should be given real opportunity to satisfy AAT that i meet criteria.
By way of orders made by a Registrar of this Court on 29 October 2020, the applicant was given an opportunity to file an amended application, any supporting affidavits and an outline of submissions.
On 18 February 2021, the applicant filed an application in a case and supporting affidavit requesting that his matter be transferred to the Melbourne registry of the Court. The Court heard that application on 6 April 2021 and dismissed the application in a case: Singh v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 726. As a result of comments made by the applicant during the course of that hearing, the Court made orders granting the applicant a further opportunity to file an amended application, any supporting affidavits and written submissions.
Unfortunately, no further materials were filed by the applicant.
The materials before the Court thus include the application for judicial review and supporting affidavit filed on 5 October 2020, an affidavit of the applicant sworn in support of the application in a case (sworn 18 February 2021), a Court Book numbering 217 pages (marked as Exhibit 1) and an outline of written submissions filed by the Minister on 9 June 2021.
The applicant appeared before this Court without legal representation. The Court confirmed with him that he had received a copy of the Court Book and the Minister’s written submissions. The Minister was represented by Ms Juarez.
Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on his grounds of review and to outline any other concerns he might have with the Tribunal’s decision. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant again repeated his concern that “he was not given enough time to get the evidence needed”.
When asked to explain what evidence he was referring to, it became clear that the applicant was referring to evidence relevant to the nomination decision – not the decision to deny him the visa he was seeking. This is a common confusion in matters of this sort, particularly when an applicant is unrepresented and no longer has a relationship with his former sponsor. The Court explained to the applicant that it could not review the nomination decision as his sponsor had not appealed that separate decision to this Court. Rather, the Court is limited to determining whether the Tribunal fell into error when it determined that the applicant could not be given the visa he was seeking because no nomination had been approved.
This issue is addressed further below when considering the applicant’s grounds of review.
CONSIDERATION
The applicant’s grounds of review are not entirely clear. As correctly explained by the Minister (at [11] in written submissions dated 9 June 2021), the pleaded grounds contend that the Tribunal did not “properly and genuinely consider” the applicant's evidence and circumstances and that he should have been given “more time to respond” and a “real opportunity” to demonstrate that the relevant criteria were satisfied.
Ground 1
Ground 1 provides:
1.The AAT was wrong because they did not properly and genuinely consider my evidence and circumstances.
As noted above, when asked to address this issue in Court, it became clear that the “evidence and circumstances” the applicant was referring to related to evidence relevant to the nomination decision. Unfortunately, that decision has not been appealed to this Court and any determinations in that regard are not relevant in relation to the matter that is before the Court.
The issue on review was whether the applicant was the subject of an approved nomination. None of the information that the applicant provided to the Tribunal prior to the hearing (for example, the letters of appreciation) were relevant to the issue of whether the applicant was the subject of an approved nomination. The evidence that the applicant was a valued staff member was also not something that the Tribunal could consider when determining whether cl 187.233 of the Regulations had been met.
The only relevant evidence from the applicant was oral evidence that confirmed that he was not the subject of an approved nomination and that he understood that, in the circumstances, he could not be granted the visa he had applied for.
Ultimately, the Tribunal relied on that evidence to determine that it was unnecessary to invite the applicant to provide any further information as he had stated he understood that, in the circumstances that had transpired, he could not be granted the visa.
The Tribunal properly and genuinely took into account all of the relevant evidence and circumstances that were necessary for the Tribunal to make its determination of whether the applicant met cl 187.233 of the Regulations.
Ground 1 is, accordingly, dismissed.
Grounds 2 and 3
Grounds 2 and 3 state:
2. I did not request an extention of time because i was told my nominator had requested already.
3. I did not know i could not seek an extention of time after the time limit passed. Bcause of this it was unfair to not to give me more time to respond.
It is unclear what, precisely, grounds 2 and 3 relate to.
The applicant did not provide the Court with a transcript of the Tribunal proceedings. There is thus no evidence that the applicant made any request for “more time”.
Arguably, taking grounds 2 and 3 at their highest, the applicant could be taking issue with the Tribunal’s conduct in relation to s 359AA of the Act and the Tribunal’s “decision” not to give him “more time”.
Section 359AA of the Act provides:
(1) If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
Relevantly, in this matter, the Tribunal noted:
16. In accordance with the procedure under s.359AA of the Act the Tribunal put to the applicant at the hearing that it wished to discuss information that, subject to his response, would be the reason or part of the reason, for affirming the decision to refuse the Subclass 187 visas. The Tribunal explained that the applicant would be asked to respond to this information and could seek additional time to comment on, or respond to the information, which the Tribunal would consider.
17. The Tribunal put to the applicant that in circumstances where the Tribunal affirmed the decision refusing approval of the nomination of the position to which the application relates, the applicant would not be able to meet essential criteria to satisfy cl.187.233 for the Subclass 187 visa The Tribunal explained to the applicant that this information is relevant to the review because without evidence of approval of the relevant nomination for the position, the applicant could not satisfy the provisions of cl.187.233(3) of the Regulations for the grant of the Subclass 187 visa.
18. The applicant responded straight away to the Tribunal stating that he understands that in circumstances where there is no approved nomination, the visa cannot be granted to him. The Tribunal accepts that the applicant understands that an approved nomination for the position is one of the essential criteria for the grant of the Subclass 187 visa sought.
The Court recognises that the applicant and the sponsor participated in a “combined hearing”. It could well be the case that the applicant “was confused” and thought that the sponsor had requested “more time”.
However, there is no evidence in this regard presently before the Court.
On the evidence before the Court, it is noted that:
·the applicant was assisted by a migration agent. The Court is of the view that the migration agent would have intervened and requested “more time” had it been the case that more time was wanted or needed;
·the information that was put to the applicant was specifically directed to him and his circumstances. The Tribunal specifically recorded that it stated that “the applicant will not meet the essential criteria” relevant to his visa;
·the applicant confirmed with the Tribunal that he understood the information and what it meant. This implies that the applicant was aware that the information was directed to him and that he was responding to it himself by indicating his understanding.
The Court is satisfied that the Tribunal adhered to the requirements of s 359AA(b) of the Act. It gave clear particulars of the information, it confirmed that the applicant had understood the information and its relevance, it offered the applicant additional time to comment or respond and the applicant chose to respond immediately. If the applicant was under a misunderstanding and thought that the sponsor had requested additional time, that is unfortunate. However, on the evidence before the Court, he has not established that that is the case.
On the basis of the evidence before the Court, it cannot be said that the Tribunal erred in relation to the requirements of s 359AA of the Act.
Ground 2 is, accordingly, dismissed.
In the last sentence of ground 3, the applicant states that “it was unfair to not to give me more time to respond”. Again, interpreting this statement broadly, it might be said that the applicant is arguing that, after the Tribunal refused the nomination application, it should have given him “more time to respond”.
The Tribunal explained why it did not give the applicant a further opportunity to provide evidence as follows:
19. As aforementioned, on 9 September 2020 the Tribunal affirmed the decision to refuse the nomination of the position. The Tribunal has not returned the matter for any further evidence or submissions as in these circumstances, and in view of authority in the case of VARSI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1280 (paragraphs 51-58) it would be ‘futile’ as ‘no useful result could ensue’ because the Subclass 187 visas cannot be granted in the absence of an approved nomination in respect of the applicant. The Tribunal is satisfied that there is no practical injustice in not returning the matter to the Tribunal following the decision to refuse the nomination and accepts the oral submissions made on behalf of the applicant at the hearing that concur with this.
It appears from the above that the Tribunal was uncertain about whether it was required to invite the applicant back to give further evidence or make further submissions. This may be because the information that the sponsor’s nomination had been refused was information that would be the reason for the Tribunal affirming the delegate’s decision. The information that the Tribunal put to the applicant pursuant to s 359AA of the Act was that if the nomination was refused then this would be the reason. The information was no longer an “if”. It was a fact.
The Tribunal chose not to invite the applicant back for a further hearing. Whether or not that was correct (i.e., whether the Tribunal was required to put the fact that the nomination had been refused) is not relevant here. This is so because, as the Tribunal’s reasons at [19] acknowledge, asking the applicant to comment would be “futile”.
Notably, the applicant had been given the opportunity to comment on the very information that was the reason he would not, and could not, be granted the visa. He provided that response at the hearing to the Tribunal in response to the s 359AA request. Even if the applicant had changed his response or presented new evidence and arguments, that would not have changed the outcome. As the Tribunal correctly noted, no useful result could ensue in light of the circumstances.
Accordingly, even if it was “unfair” for the Tribunal not to give the applicant time to comment and respond after the Tribunal had affirmed the decision to refuse the nomination, any denial of procedural fairness in this regard did not amount to jurisdictional error.
Ground 3 is, accordingly, dismissed.
Ground 4
Ground 4 provides:
I should be given real opportunity to satisfy AAT that i meet criteria
During the course of the hearing of the application in a case (see above at 22), the applicant raised concerns about the fact that the Tribunal proceedings were conducted via Microsoft Teams.
Relevantly, in his affidavit sworn on 18 February 2021, the applicant states:
4. … I am requesting that the case be heard in the Federal Circuit Court in Melbourne so that I will be able to attend the hearing and be heard in person, instead of via video conference or phone. My reasons are as follows.
5. I have had the experience when the AAT conducted the hearing via video conference and I was not comfortable at all. I could not express and present my arguments in a coherent manner. The voice does not come through clearly and most of the time, I was not able to respond effectively. Hence, I lost my review application at the AAT. I am afraid this will happen again with the Federal Circuit Court hearing, if conducted via video conference.
6. When I applied for the judicial review in the Perth registry, I was looking forward to a face-to-face hearing. Now, I am moving to Melbourne for my studies. I do not want to have the hearing conducted via video conference. I want to have a face-to-face hearing in Melbourne Federal Circuit Court.
7. There is a lot at stake in how this hearing is conducted. I have worked very hard in trying to get an Australian permanent visa. This hearing is, therefore, very important to me. I want to succeed in this appeal. I do not want to lose the appeal because of the manner in which the hearing is conducted.
8. As stated above, I had a bad experience during the AAT hearing which was conducted via video conference. I do not want a repeat of the same.
It is apparent from the above that the applicant feels that the fact that the Tribunal hearing proceeded via video “caused him to be unsuccessful”.
Noting that the applicant was unrepresented (and noting its obligations to assist unrepresented applicants and assess for itself whether error arises on the part of the Tribunal: as per the decision in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392), the Court has considered whether the “video hearing” before the Tribunal denied the applicant a “real opportunity” to give evidence and present arguments (as required by s 360 of the Act).
It is noted that at the hearing of the application in a case, the applicant stated that he wanted to provide a transcript of the hearing. The Court made orders extending the time for him to do so. Unfortunately, no transcript was provided.
The Tribunal is permitted to allow an appearance via Microsoft Teams: the Act, s 366. Here, the Tribunal exercised the discretion to do so.
The hearing before the Tribunal occurred via Microsoft Teams (CB 161). In the response to hearing invitation, the applicant was asked if there would be any difficulty with the matter proceeding via telephone or videoconference. The applicant indicated “No” (CB 176). The hearing record notes that the hearing was just under 2 and a half hours in length.
In the Tribunal’s decision, the Tribunal states as follows:
7. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The Tribunal also records what occurred during the hearing and the applicant’s express acknowledgment that he understood the matters that were being put to him (at [18]).
On the materials before the Court, there is nothing to suggest that any issue arose in relation to the conduct of the hearing via Microsoft Teams. Further, the fact that the Tribunal conducted a hearing via Microsoft Teams was entirely reasonable. The relevant issue before the Tribunal did not turn on any assessment of the applicant’s credibility or demeanour and the applicant did not object to the hearing proceeding in this manner.
The applicant now states in his affidavit that he could not express and present his arguments in a coherent manner and could not respond effectively as the audio was not clear. He says that this was why he was unsuccessful.
There is nothing to suggest that the applicant was not given a real opportunity to satisfy the Tribunal that he met the criteria to be granted the visa. The applicant attended a hearing. There does not appear to have been any issue with the Tribunal hearing occurring via Microsoft Teams.
In any event, any issues that arose could not have caused the applicant to be unsuccessful. What caused the applicant to be unsuccessful was the fact that the nomination application was refused. It was that fact, and that fact alone, which resulted in the applicant being denied his visa.
The sponsor’s decision is not under review here. The sponsor has not sought review of the Tribunal’s decision relevant to the nomination. Hence, the sponsor’s decision is a valid and effective decision which, ultimately, sealed the applicant’s fate.
The applicant was, on the evidence before the Court, given a “real opportunity” before the Tribunal. In any event, even if a proper opportunity was not provided, in circumstances where the sponsor’s decision remains valid, the applicant was not deprived of the possibility of a successful outcome.
On the basis of the above, ground 4 is also dismissed.
Futility
The Court has noted above that the Tribunal was correct to determine that, having refused the nomination application, “no useful result could ensue” for the applicant and it would be “futile” to allow the applicant to provide any further information.
Visas of this sort are, in effect, “tied” to the sponsor and the approval of the nomination. It is a requirement that the sponsor’s nomination application be successful for the applicant to be successful. If the nomination application is not successful, an applicant’s visa application is “doomed to fail”.
The circumstances here are such that, even if there was a jurisdictional error, it would be futile to remit the matter the Tribunal: Singh v Minister for Immigration & Border Protection [2017] FCAFC 105. The Tribunal would, again, find that the applicant did not meet cl 187.233 of the Regulations as the applicant is not the subject of a valid nomination.
There is no evidence that the sponsor has sought to challenge the nomination decision. The nomination decision therefore remains a valid and effective decision which, on remittal, the applicant cannot cure. He cannot, for example, find a new sponsor or be nominated for a different position. The application is a “once off” process tied to the sponsor’s nomination application which, here, has failed. This means that the applicant will, on any view, also fail if the matter is remitted to the Tribunal.
Accordingly, any remittal of the matter would be futile.
CONCLUSION
The applicant’s application for judicial review file on 5 October 2020 has failed to identify jurisdictional error on the part of the Tribunal in its decision dated 9 September 2020. In any event, as the Court has explained above, the circumstances of this matter are such that any remittal would be futile.
The application is, accordingly, dismissed.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 21 June 2021
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