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Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 359 (26 February 2021)

Last Updated: 26 February 2021

FEDERAL CIRCUIT COURT OF AUSTRALIA

Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 359

ORDERS

IT IS ORDERED THAT:

1. The Application for Review filed on 23 April 2020 be dismissed.
2. The First Applicant and Second Applicant pay the First Respondent’s costs of and incidental to the Application of Review fixed in the amount of $6,100.00.

REASONS FOR JUDGMENT

JUDGE EGAN:

1. The applicants are citizens of the Republic of India. The first applicant applied for a Regional Sponsored Migration Scheme (Subclass 187) Visa on 17 January 2017. The second and third applicants are family members of the first applicant. Though born in Australia, the third applicant was not an Australian citizen pursuant to the provisions of s. 12(1) of the Australian Citizenship Act 2007 (Cth) because he had not attained the age of 10 years as at the date of the hearing before the Court.
2. It was a condition of the grant of the visa that there was an approved sponsor nomination in place pursuant to cl. 187.233 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Clause 187.233 relevantly provided as follows:

187.233

(1) The position to which the application relates is the position:

(a) nominated in an application for approval that seeks to meet the requirements of:

(i) subparagraph 5.19(4)(h)(ii); or
(ii) subregulation 5.19(4) as in force before 1 July 2012; and

(aa) in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); and
(b) 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 person who will employ the applicant is the person who made the nomination.
(3) The Minister has approved the nomination.
(4) The nomination has not subsequently been withdrawn.
(4A) 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.

(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.

3. On 17 August 2018, the nomination application lodged by JML Restaurants Pty Ltd in respect of the first applicant’s proposed employment was refused by a delegate of the Minister for Immigration and Border Protection.
4. At the time of the hearing before the Administrative Appeals Tribunal (‘the Tribunal’), no application for review of the refusal of the nomination application had been lodged with the Tribunal. ^[1]
5. In circumstances where there was no approved nomination application, the application for the visa was unable to succeed. The application for review of the decision of the delegate before the Tribunal was therefore futile and lacking in utility.
6. In circumstances where there was no basis for consideration of whether the Tribunal ought to have granted the visa to the first applicant, it is unnecessary to consider the question as to whether the Tribunal unreasonably dismissed the application for review before it by reason of the non-appearance of the applicants before the Tribunal on the day listed for the Tribunal hearing. The Tribunal did not err in dismissing the application on the basis that no application for reinstatement had been made within 14 days after 13 March 2020, that being the date on which notification of the dismissal of the application for review by the Tribunal had been emailed to the applicants. ^[2]
7. The decision of the Tribunal could not be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332 at [66] and [76] where it was said:

“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
...
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

8. The applicants have failed to establish jurisdictional error on the part of the Tribunal.
9. The application for review is without merit and is dismissed.
10. The Court will hear the parties as to costs.

Associate:

Dated: 26 February 2021

^[1] See Affidavit of Rozanne Topham filed on 21 August 2020 and Annexure RT-1 thereto.
^[2] See Court Book (CB) p. 153 – 160 inclusive.