Kaur v Minister for Immigration and Citizenship [2025] FedCFamC2G 1835

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules)), or to record a variation to the order pursuant to r 24.04 of the Rules.

1. Before the Court is an application seeking judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 13 July 2020. By that decision, the Tribunal affirmed a decision of a delegate (delegate) of the first respondent (Minister) to refuse to grant a Subclass 187 Regional Employer Nomination (Permanent) (Class RN) visa (Subclass 187 visa) to each applicant.
2. The Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).
3. For the following reasons, the application is dismissed

1. The background and procedural history to this matter was helpfully summarised in the Minister's submissions, which I primarily adopt.

1. On 2 November 2016, the first applicant in this case, a female national of India, signed a job offer from VJN Group Pty Ltd (nominator) for the position of Retail Manager.[1]
2. On 28 November 2016, the first applicant applied for the Subclass 187 visa on the basis of her prospective employment with the nominator.[2]
3. The first applicant's husband, the second applicant in this case, made a combined application with the first applicant.[3]
4. On 14 August 2017, the third applicant was born in Australia. She is the daughter of the first and second applicants. By operation of reg 2.08 of the Migration Regulations 1994 (Cth) (Regulations), the third applicant was taken to have made a Subclass 187 visa application combined with the applications made by her parents.[4]
5. On 14 March 2018, the delegate refused to approve a nomination made by the nominator in relation to the position to be filled by the first applicant.[5]
6. On 12 April 2018, the delegate refused the applications for the Subclass 187 visa.[6] The delegate found the first applicant did not meet the requirements of cl 187.233(3) in Pt 187 of Sch 2 to the Regulations as the relevant nomination made by her nominator had been refused on 14 March 2018. The delegate also found that the secondary applicant did not meet the requirements of cl 187.311 in Pt 187 of Sch 2 to the Regulations because he was not a member of the family unit of a person who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for grant of the visa.[7]
7. On 14 May 2018, the primary applicant notified the Minister's Department of the birth of the third applicant, and requested she be included in the Subclass 187 visa application.[8]
8. On 19 July 2018, a delegate refused to grant a Subclass 187 visa to the third applicant as she did not meet the requirements of the primary or secondary criteria in Pt 187 of Sch 2 to the Regulations.[9]

1. On 3 May 2018, the first, second and third applicants (collectively, the applicants) applied to the Tribunal for review of the delegate's decisions.[10]
2. On 25 June 2020, the Tribunal invited the applicants to attend a telephone hearing on 13 July 2020. The Tribunal elected to conduct that hearing in combination with the review application made by the nominator concerning the decision to refuse the related nomination. As the Tribunal chose to hear these review applications together, it referred to the hearing as a combined hearing.[11]
3. On 13 July 2020, the primary applicant and Mr Bharatkumar Virabhai Patel, the nominator's sole director, attended the combined hearing.[12] Later that day, the Tribunal:

(a) affirmed the decision under review to refuse to approve the nomination in relation to the position to be filled by the first applicant;[13] and

(b) subsequently affirmed the decision under review not to grant a Subclass 187 to each of the first, second and third applicants.[14]

1. In its decision, the Tribunal identified the issue on review was whether the applicants met the criteria for the grant of a Subclass 187 visa.[15]
2. The Tribunal noted the first applicant sought to meet the criteria specified within the Direct Entry stream of the Subclass 187 eligibility criteria specified within Pt 187 of Sch 2 to the Regulations. This required at least one applicant, the primary applicant, to meet the common criteria in cl 187.21 and the Direct Entry stream criteria in cl 187.23 of the Regulations.[16]
3. At hearing, pursuant to s 359AA of the Act, the Tribunal put to the first applicant that in circumstances where the decision in respect of the related nomination was affirmed, the first applicant would not be able to meet the criteria in cl 187.233(3) of the Regulations.[17] The first applicant confirmed she understood that where there no approved nomination her visa could not be granted and as a consequence the applications made by the second and third applicants could not succeed.[18]
4. The Tribunal did not seek further evidence or submissions from the primary applicant on the ground of futility, given the relevant nomination had been refused: Varsi v Minister for Immigration & Anor [2018] FCCA 1280 [51]-[58].[19]
5. In the absence of an approved nomination, the Tribunal found the first applicant did not meet cl 187.233 and thereby affirmed the delegate's decision not to grant her a Subclass 187 visa.[20] The Tribunal noted no claim had been made in respect of any other visa streams.[21] It followed that the Tribunal affirmed the delegate's decisions with respect to each of the second and third applicants as they did not meet cl 187.311.[22]

1. On 6 August 2020, the applicants commenced proceedings by way of originating application. The applicants advanced three grounds of review, set over four paragraphs (reproduced below without alteration):
   1. Jurisdictional error - Member of Administrative Appeals Tribunal & Delegate of Minister misinterpreted the r.5.19(4) while refusing the Sc 187 nomination under Direct Entry Nomination Scheme for my employer Business VJN Group Pty Ltd. And refused my visa under cl.187.233 of Schedule 2 to the Regulations while refusing my 187 RSMS visa application.
   2. Procedural fairness - Tribunal did not consider my previous work and time spend in Australia while making the decision under clause 187.233
   3. Member of Administrative Appeals Tribunal & The Department of Immigration has exceeded its jurisdiction in that it followed a procedure contrary to law and refused to approve my Regional Employer Nomination (subclass 187) visa application under regulation clause 186.233. My employer was not given a proper chance to present his argument and provide further information.

4. Annexed and marked 'A' is a copy of AAT Decision record.

1. The nominator also filed an application for review in this Court in relation to the decision of the Tribunal to affirm the delegate's decision to refuse to approve a nomination made in relation to the position to be filled by the first applicant (related proceedings).
2. I held a hearing in relation to this matter and the related proceedings at 10.15am on 24 July 2025. At that hearing, there was no appearance on behalf of the nominator in the related proceedings. After calling the matter three times, the Minister sought to have the related proceedings dismissed for non-appearance. The Minister relied on the affidavit of Mr Henry Chapman, affirmed on 22 July 2025 to show that the nominator was served via email and made aware of the consequences of non-appearance. I was satisfied the nominator had been served and for whatever reason had decided not to attend the hearing. I was further satisfied the non-attendance occurred in circumstances where the nominator was put on notice by the Minister as to the consequences of a failure to attend. As such, I dismissed the related proceedings pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
3. Following the dismissal of the related proceedings, I stood the matter down for a short period to allow the Minister's representative, Ms Ren, to speak with the primary applicant, a litigant in person, about relevant options available to the applicants. On return, I proceeded to hear the matter.

1. At the time the Tribunal made its decision, the first applicant was required to satisfy the primary criteria for the grant of a Subclass 187 visa in the Direct Entry stream, including clause 187.233, which 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 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. At the time the Tribunal made its decision, the second and third applicants were required to satisfy the secondary criteria for the grant of a Subclass 187 visa, including clause 187.311, which provided as follows:

(a) is a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

(b) made a combined application with the primary applicant.

1. By ground 1, the applicants contend the Tribunal and delegate misinterpreted reg 5.19(4) of the Regulations in refusing the applications of both the nominator and the applicants.
2. The Minister submits and I agree this ground can only be considered in relation to the Tribunal's decision affirming the decision to refuse to grant a Subclass 187 visa to each of the first, second and third applicants. The Court does not have jurisdiction with respect to the delegate's decision made on 21 September 2019: see ss 476(2) and (4) of the Act.
3. Regarding the Tribunal's decision, the Minister submits, and I agree, that reg 5.19(4) contains criteria that are relevant to the approval of a nomination and therefore not relevant to the Tribunal's decision in this matter. Accordingly, the applicant's complaint is misdirected and this ground must fail.

1. By ground 2, the applicants suggest the Tribunal failed to consider the first applicant's previous work experience and time spent in Australia when assessing whether she met cl 187.233. The Minister submits, and I agree, that the first applicant's prior work history and time spent in Australia were not relevant to the Tribunal's determination of whether cl 187.233 was met. Those matters had no bearing whatsoever upon the existence of a nomination approved by the Minister. Accordingly, the applicant's complaint is misdirected and this ground must also fail.

1. By ground 3, the applicants allege the Tribunal and the Minister's Department exceeded jurisdiction by following a procedure contrary to law. They further complain the nominator was not provided with a proper opportunity to present arguments and provide further information.
2. The Minister submits that this ground lacks sufficient particularity, making it difficult to identify the specific allegations being made. The Minister further contends that the applicants have not explained how the first applicant's proposed employer was denied an opportunity to provide further evidence, nor have they identified what evidence the employer would have sought to submit.
3. On 25 June 2020, the Tribunal invited the applicants and to attend a hearing on 13 July 2020. The first applicant and the sole director of her proposed employer, Mr Patel, attended that hearing to give evidence. Based upon my review of the evidentiary record, along with the applicants' inability to further particularise this ground at hearing before me, I share the Minister's view that there is no indication that the Tribunal failed to afford the applicants procedural fairness or denied Mr Patel an opportunity to provide additional evidence. I agree with the Minister that ground 3 cannot be established.

1. The Minister's representative, Ms Ren, drew my attention to Collier J's observation in Mora v Minister for Immigration and Border Protection [2018] FCA 1819 at [55] that decisions relating to nominations and the grant or refusal of visas within this particular statutory context are 'inextricably linked'. It was submitted that in circumstances where the related proceedings had been dismissed, then the present application should also be dismissed because:

(a) the applicants had failed to allege any error on the part of the Tribunal, and none was apparent; and

(b) there would be no useful result to be obtained by remitting the matter to the Tribunal in circumstances where the first applicant could not satisfy the criteria for the grant of the Subclass 187 visa (See, e.g., Singh v Minister for Immigration and Border Protection [2017] FCAFC 105; (2017) 253 FCR 267; FCAFC 105 (Singh), at [82] per Mortimer J, with whom Jagot and Bromberg JJ agreed).

1. I find the Minister's submissions compelling, particularly given my earlier conclusion that the Tribunal did not err. Even if jurisdictional error had been established - which it has not - the absence of an approved nomination means that, upon remittal, the Administrative Review Tribunal would be unable to reach a different decision. I accept that the relevant criterion for a Subclass 187 visa requires approval of the original nomination and cannot be satisfied by reference to a new nomination lodged after the Tribunal's decision: Singh at [82]-[90].

1. It remains to say that the Court has utmost sympathy for the circumstances of the applicants and it would be desirable that consideration be given by the first respondent to any available avenue of Ministerial intervention.

1. For the above reasons, the application before this Court is dismissed.
2. Finally, as a consequence of the change in name of the Minister's portfolio, the name of the first respondent is to be amended to 'Minister for Immigration and Citizenship'.
3. I will hear the parties as to costs.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos.

[20] CB 117, [19]-[20]; CB 117, [22].