Kannangara v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 254

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. The Appellant appeals from a decision of the Federal Circuit and Family Court (Division 2) dismissing her application for judicial review of a decision of the Administrative Appeals Tribunal made on 31 August 2021: Kannangara v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 274. By that decision, the Tribunal had affirmed a decision of a delegate of the Minister made on 3 August 2019, refusing to grant the Appellant a Regional Employer Nomination (Permanent) (Class RN) Visa under the Direct Entry stream. The delegate had refused to the grant the Visa because the Appellant did not meet the criteria set out in cl 187.233(3) of Sch 2 to the Migration Regulations 1994 (Cth).
2. Clause 187.233 of Sch 2 of the Regulations provided for the criteria for the Direct Entry stream. It provided:

(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 a Direct Entry stream; and

(iii) seeks to meet the requirements of subregulation 5.19(12); 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(4) The nomination has not subsequently been withdrawn.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.

1. The Appellant sought the Visa to work in the nominated position of Contract Administrator for Alpha Supper Cleaning Services Pty Ltd.
2. Alpha had made an application to the Department to have the position of Contract Administrator approved, with the Appellant as nominee on 2 March 2018. The nomination application was refused on 7 June 2019 and Alpha had sought review of that decision by the Tribunal on 28 June 2019. On 22 July 2021, the Tribunal affirmed the decision to refuse the nomination.
3. In determining the Appellant's application for review of the decision of a delegate to refuse to grant her the Visa, the Tribunal (at [27]-[29]) found that because there was no approved nomination, cl 187.233(3) had not been satisfied and the Appellant therefore did not satisfy the criteria for a visa under the Direct Entry stream.
4. The Appellant sought judicial review of the Tribunal's decision. The Appellant was self‑represented before the primary judge (as she was before this Court). Her grounds of review were not articulated beyond that there was injustice as no consideration had been given by the Tribunal as to why the nomination had been refused or whether it had been fair to refuse the nomination.
5. The primary judge concluded (at [20]) that because the only application before the Court related to the decision of the Tribunal in relation to the Appellant's application for the Visa, it was not part of the Court's task to review the earlier decision of the Tribunal in relation to the refusal of Alpha's application to nominate the position. The decision to refuse the application for the nomination was a separate decision to the refusal to grant the Appellant her Visa.
6. It is an essential criteria under the Regulations in order to be granted the type of visa the Appellant sought, that she needed to be the subject of an approved nomination by an employer. The nomination of her employer had been refused by the delegate and that refusal had been affirmed by the Tribunal prior to the Appellant's application being considered. The Tribunal found that there is no approved nomination for the purposes of the Appellant's application. Because the Appellant was not the subject of an approved nomination, the primary judge concluded that the decision of the Tribunal made on 31 August 2021 was correct.
7. In her notice of appeal to this Court, the Appellant contends that her:

application of appeal to AAT for 187 visa was refused simply saying that there is no approved nomination. I find this is injustice for me as I have found no consideration given to why the nomination was refused or whether it is fair enough to refuse the nomination.

1. In relation to the refusal to grant the Appellant the Visa, the Appellant submitted that the decision was unfair to her because she was working in the nominated position as a permanent full time employee of Alpha for years after the nomination had been refused, showing "her dedication towards work and to the territory". It is unfair for her to have her Visa application refused due to the fault of a third party given she had fulfilled all her tasks and duties. She would not have many opportunities to find work in Sri Lanka. The Appellant had done all she could do to satisfy the requirements for her Visa.
2. At their heart, the Appellant's contentions related to the decision of the Tribunal to affirm the refusal of Alpha's nomination. The criterion that Alpha's nomination had to satisfy were summarised by Raper J in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123; 299 FCR 464 at [142]-[143]. Although it applied to the Tribunal for review of the refusal of its nomination application, Alpha failed to provide information addressing the relevant criteria. The Tribunal found that neither the criterion in r 5.19(4)(e) nor r 5.19(4)(h)(ii)(F) of the Regulations had been satisfied.
3. As the primary judge observed, the refusal decision in respect of Alpha's nomination application was not the subject of judicial review before the Court. The Appellant does not have standing to challenge the refusal decision in respect of Alpha's nomination application, as was determined in Singh at [81] (O'Sullivan J, Raper J concurring at [205]), an authority binding on this Court. Alpha is not a party to the review of the decision to refuse the Appellant the Visa and the Appellant is not a party to any review of Alpha's nomination application: see ss 479 and 486C of the Migration Act 1958 (Cth). The Court observes that nothing on the face of the record of the decision of the Tribunal in respect of Alpha's nomination application discloses error.
4. The Court does not doubt that the Appellant has demonstrated commitment to her work in the Northern Territory. However, the criterion for the Visa she seeks include those prescribed in cl 187.233 of Sch 2 of the Regulations as in force at the relevant time. One of those criteria was that the Minister had approved the nomination of the position. The nomination of the Appellant's position had not been approved, albeit not by reason of any failure on the Appellant's part.
5. There was no error by the Tribunal in affirming the decision of the delegate to refuse the Appellant's Visa and there was no error in the primary judge's dismissal of the Appellant's application to the Court.
6. The Appellant's appeal is dismissed with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hespe.