Sultana v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 4

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Sultana v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 4

File number(s):	SYG 2004 of 2023
Judgment of:	JUDGE KAUR-BAINS
Date of judgment:	9 January 2025
Catchwords:	MIGRATION – application for Employer Nomination (Permanent) (Class EN) visas – the Tribunal on review refused to approve the nomination and accordingly refused to grant the applicants visa – no jurisdictional error in the Tribunal’s decision not to approve the employer nomination – application dismissed
Legislation:	Migration Regulations 1994 (Cth) sch 2 cll 186.223 and 186.311
Cases cited:	Mora v Minister for Immigration and Border Protection [2018] FCA 1819
Division:	Division 2 General Federal Law
Number of paragraphs:	10
Date of last submissions:	28 November 2024
Date of hearing:	8 November 2024
Place:	Sydney
Counsel for the Applicants:	Mr D Godwin
Solicitor for the Applicants:	Malik Lawyers
Counsel for the First Respondent:	Mr G Johnson
Solicitor for the First Respondent:	Mills Oakley Lawyers
Solicitor for the Second Respondent:	Submitting appearance save as to costs

ORDERS

SYG 2004 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FARHEEN SULTANA

First Applicant

MUDASSIR HASSAN

Second Applicant

HASSAN AFFAN (and another named in the Schedule)

Third Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE KAUR-BAINS
DATE OF ORDER:	9 JANUARY 2025

THE COURT ORDERS THAT:

1.The application is dismissed.

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 KAUR-BAINS

1. The applicants filed an application seeking judicial review of a decision by the second respondent (Tribunal) dated 11 December 2023. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants Employer Nomination (Permanent) (Class EN) Visas (Subclass 186) (Visa).

   TRIBUNAL DECISION

2. The Tribunal at [2] to [4] of its reasons, set out the details of the visa sought to be obtained by the applicants and the requisite criteria for the visa that needed to be met as follows:

   (a)On 8 November 2019, the applicants applied for the visa. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

   (b)The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria is satisfied if met, by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

   (c)In the present case, the first named applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Accountant (General) for Aussie Marketing Force Pty Ltd (the nominator).

   (d)The delegate refused to grant the visas because the first named applicant did not meet cl 186.223(2) of schedule 2 to the Regulations, which required her to be the subject of an approved nomination. The delegate found that the nomination lodged by the nominator was refused on 5 June 2020 and accordingly the applicant did not satisfy cl 186.223(2) and did not meet cl 186.223.

   (e)The delegate also found that the second, third and fourth named applicants could not be granted Subclass 186 visas, as they did not meet the secondary visa criterion in cl 186.311, requiring each of them to be a member of the family unit of a person who has met the primary visa criteria and holds a Subclass 186 visa.

3. At [14] of its reasons, the Tribunal correctly noted the issue in the present case was whether there was an approved nomination. At [23] of its reasons, the Tribunal noted that the application for nomination for the position of accountant had not been approved. Accordingly, the Tribunal found that there was no approved nomination for the purposes of the applicant's visa application. The Tribunal accordingly found that cl 186.223 was not met in respect of the first applicant.

4. At [26] of its reasons, in relation to the second, third and fourth named applicants, the Tribunal noted that cl 186.311 required that a secondary visa applicant is a member of the family unit of the primary applicant who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa. As the first named applicant had not met the requirements for the grant of a Subclass 186 visa and was not the holder of a Subclass 186 visa, it followed that the second, third and fourth named applicants did not satisfy the requirements of cl 186.311.

   GROUNDS IN THE APPLICATION

5. In their amended application filed on 10 October 2024, the applicants contended that:

   The Tribunal found that the applicants did not satisfy cl. 186.232(2) as the nomination of the position had not been approved. However the refusal to approve the nomination itself was unlawful and reliance upon the refusal infects the Tribunal’s decision with jurisdictional error.

   PROCEEDINGS BEFORE THE COURT

6. This matter was heard concurrently with proceedings SYG 1984 of 2023, being judicial review proceedings brought by Aussie Marketing Pty Ltd, the nominator, challenging the decision of the Tribunal to affirm a decision of a delegate of the Minister refusing the nomination approval in relation to the first applicant.

7. At the hearing before me, counsel for both parties accepted that if I found jurisdictional error in proceedings SYG 1984 of 2023 and made orders remitting that matter to the Tribunal, then it was appropriate that the Court set aside the Tribunal's decision the subject of challenge in these proceedings and remit the matter to the Tribunal for consideration: Mora v Minister for Immigration and Border Protection [2018] FCA 1819, [55] (Collier J). Similarly, if I found no jurisdictional error in proceedings SYG 1984 of 2023, then it would follow that I would find no jurisdictional error in this matter.

   CONSIDERATION

8. In proceedings SYG 1984 of 2023, I found that the Tribunal's decision was not infected by jurisdictional error and I made orders dismissing the application in those proceedings. Therefore, it follows that I find that there is no jurisdictional error in this matter.

   CONCLUSION

9. The application is dismissed.

10. I will hear the parties on costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains.

Associate:

Dated:       9 January 2025

SCHEDULE OF PARTIES

SYG 2004 of 2023
Applicants
Fourth Applicant:	FIZA HASSAN