Singh v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 504

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).

1. Before the Court is an application seeking judicial review of a decision made by the second respondent, the Administrative Appeals Tribunal (Tribunal), on 29 March 2021. By this decision, the Tribunal affirmed a decision made by a delegate (delegate) of the first respondent (Minister) on 22 June 2018 to refuse to grant a Subclass 457 Temporary Work (Skilled) (Class UC) visa (subclass 457 visa) to each applicant.
2. The Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
3. For the following reasons, the application is dismissed.

1. The Minister helpfully summarised the background to the matter in their written submissions filed on 12 March 2025, which I primarily adopt.

1. The first applicant (applicant), a male national of India, lodged an application for a subclass 457 visa on 19 June 2017. The second and third applicants, being the applicant's wife and daughter, were included as dependents in the applicant's subclass 457 visa application.
2. On 24 April 2018, the applicant was advised by the Minister's Department that their prospective sponsoring employer did not have an approved nomination in place and provided the applicant with an opportunity to comment on this adverse information or withdraw their application.
3. On 22 June 2018, a delegate of the Minister refused to grant the applicant a subclass 457 visa. The delegate was not satisfied the applicant had met the requirement of an approved nomination in sub-cl 457.223(4)(a) in Pt 457 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations).[1] No claim was made by the applicant against cl 457.223(2).[2] Having refused to grant a subclass 457 visa to the applicant, the delegate then refused to grant a subclass 457 visa to each of the second and third applicants as they were not members of the family unit of a person who was granted a subclass 457 on the basis of having met the primary criteria for visa grant: see cl 457.321.

1. On 11 July 2018, the applicant, along with the second and third applicants, applied to the Tribunal for a review of the delegate's decision.[3]
2. On 12 September 2019, a delegate of the Minister refused to grant the fourth applicant, being the applicant's son, a subclass 457 visa on the basis that the applicant did not hold a subclass 457 visa, and the fourth applicant was thereby not a member of the family unit of a person holding a subclass 457 visa: see cl 457.321.[4] On 3 October 2019, the fourth applicant was added to the applicant's review application.[5]
3. On 22 February 2021, the applicant and the second, third and fourth applicants (collectively, the applicants) were invited to attend a telephone hearing before the Tribunal on 22 March 2021.
4. On 22 March 2021, the applicant attended that hearing where they communicated with the Tribunal with the assistance of an interpreter in the Punjabi and English languages.[6] Oral evidence was given by the applicant at that hearing.[7]
5. On 29 March 2021, the Tribunal affirmed the decisions of the delegate to refuse to grant a subclass 457 visa to each applicant.[8]

1. In its decision, the Tribunal identified that the issue in review was whether there was an approved nomination as required by sub-cl 457.223(4)(a).[9]

1. The Tribunal noted that the applicant was the subject of nomination application by a partnership H Sohi and M Kaur (sponsor). The sponsor applied for approval on 19 June 2017 and identified the applicant as the nominee for the position as a Fruit or Nut Grower ANZSCO 121213. The Tribunal also identified that the position was located in the Coffs Harbour region.[10] However, the Tribunal noted the nomination had not been approved by the Department and that, on 8 December 2020, another Tribunal had affirmed that decision to refuse to approve the nomination.[11]
2. The Tribunal concluded that as the applicant was not the subject of an approved nomination, it followed he did not meet the requirements of sub-cl 457.223(4)(a). The Tribunal further observed that no claims were made in respect of the other streams within cl 457.223 and found there was no evidence before it to indicate the applicant would be able to satisfy the criteria for another stream that might otherwise give rise to the applicant meeting cl 457.223. On that basis, the Tribunal affirmed the decision not to grant the applicant a subclass 457 visa.
3. The Tribunal then recorded that there was no evidence before it to indicate that the second, third or fourth applicants either satisfied the primary criteria for a grant of a subclass 457 visa or were members of the family unit of a person who satisfied the primary criteria for a grant of a subclass 457 visa. On that basis, the Tribunal affirmed the decision to refuse to grant each of them a subclass 457 visa.[12]

457.223

(4) The applicant meets the requirements of this subclause if:

(i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

(ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

(iii) the approval of the nomination has not ceased as provided for in regulation 2.75; and

(aa) the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and

(ba) either:

(i) the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or

(ii) each of the following applies:

(A) the applicant is employed to work in the nominated occupation;

(B) if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person's most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person's business or in a business of an associated entity of the person;

(C) if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person's most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person's business; and

(i) the applicant's intention to perform the occupation is genuine; and

(ii) the position associated with the nominated occupation is genuine; and

(da) the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and

(e) if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation - the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and

(eb) if:

(i) the applicant is not an exempt applicant; and

(ii) subclause (6) does not apply to the applicant;

the applicant:

(iv) has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and

(v) achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and

(ec) if the Minister requires the applicant to demonstrate his or her English language proficiency - the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and

(f) either:

(i) there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or

(ii) it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.

(a) the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and

(b) the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.

exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.

1. The originating application, filed in this Court on 22 April 2021, raised one ground of review (reproduced without alteration):
   1. The first respondent did not act in accordance with the law in reaching at a conclusion to refuse my Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa application.
2. By way of particulars, the applicant provided an extensive narrative detailing the circumstances surrounding his relationship with the sponsor, his employment history and his visa application history. This narrative included a range of assertions in relation to mistreatment by the sponsor along with negligence and improper conduct on the part of a migration agent. These matters were essentially repeated by way of the applicant's affidavit sworn on 23 April 2021.
3. The Minister filed written submissions in this matter on 12 March 2025.
4. At the hearing before this Court on 26 March 2025, the applicant was given the opportunity to provide oral submissions in order to elaborate upon his ground of review and reply to the Minister's written and oral submissions. The applicant did not avail himself of that opportunity.

1. In relation to the single ground of review raised, the applicants raise issues involving the sponsor and migration agent but do not take issue with the Tribunal's decision.[13]
2. The Minister submits that insofar as the applicants complain about the migration agent, there is no objective evidence before the Court substantiating those complaints, and such complaints do not alter the 'critical fact'[14] that the applicant was not the subject of an approved nomination at the time of the Tribunal's decision.
3. The Minister further submits that the complaints raised against the migration agent are not sufficient to give rise to fraud on the Tribunal: see SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 at [53], and that it had not been demonstrated that the migration agent's conduct was fraudulent in the sense that it prevented the Tribunal from conducting the review.[15]
4. I agree with the Minister and accept that there is no evidence to substantiate the claims raised by the applicants. There is insufficient argument or evidence to indicate fraud in the sense that either invalidated the making of any subclass 457 visa application or, more importantly, frustrated the Tribunal's decision-making: see Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17 at [19].
5. I further agree with the Minister that the applicants' ground of review, insofar as it raises a complaint against the sponsor, does not give rise to a finding of jurisdictional error on the Tribunal's part.

1. Consistent with his duties as a model litigant, the Minister identified an error in the Tribunal's reasons. In paragraph 10 of the Tribunal's reasons, the Tribunal has incorrectly stated that another Tribunal affirmed the delegate's decision in relation to the nomination on 8 December 2020. However, the delegate's decision to refuse the nomination in this case was affirmed by another Tribunal on 9 December 2020.[16] The Minister submits, and I agree, that this error is merely typographical in nature and does not give rise to jurisdictional error: see Enkhbat v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 308. In any event, I would not regard such an error as material in nature as a different outcome could not have resulted had the error not been made: see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12.

1. In addition, as submitted by the Minister, it would be futile for this matter to be remitted. The absence of an approved nomination would mean that, even if the matter were remitted, the Administrative Review Tribunal would not be able to come to a different view. The Minister submits that the criterion for a subclass 457 visa can only be satisfied by approval of the original nomination and cannot be assessed against a new nomination application subsequently lodged by the employer: see Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 at [82]- [90]. I accept that submission.
2. Furthermore, the Minister argues that even if the applicant were to establish jurisdictional error, relief should be refused because remittal would be futile due to legislative amendments introduced by the Migration Amendment (Temporary Skills Shortage Visa Complementary Reforms) Regulations 2018 (Cth) (amending Regulations) which effectively abolish the sub-class 457 visa: see ANSARI & Ors v Minister for Immigration & Anor [2020] FCCA 458. I agree with the Minster that a consequence of the repeal of the subclass 457 visa scheme, following the passage of the amending Regulations, is that it would be impossible for an employer to seek approval for a nomination for a prospective subclass 457 visa holder, and subsequently it is impossible for the applicant to find a new sponsor under that scheme: see Kainth v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1629 at [45]. Therefore, even if I had found jurisdictional error in this case (which I do not), it would be futile to remit the matter as a newly constituted Tribunal would be bound to affirm the decision under review as the applicant would be unable to satisfy sub-cl 457.223(4)(a) based on the original nomination or a new nomination: Sood v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1057 at [10] per Perram J.
3. As was submitted by the Minister, the foregoing constitutes a sufficient basis for the application to be dismissed.

1. Therefore, for the above reasons, the application before this Court is dismissed.
2. It should also be noted that as a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to 'Administrative Review Tribunal'. I will so order.
3. I heard the parties in relation to costs and note that the Minister sought costs to be paid by the first and second applicants fixed in the sum of $6,100. I find that costs should follow the event and that this amount is reasonable in the circumstances given the work undertaken by the Minister in this case including, but not limited to, preparation of the Court Book, drafting of written submissions as well as preparation for and appearance at the hearing. I will so order that the Minister's costs be paid by the first and second applicants fixed in the sum of $6,100.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos.

[13] Minister's Submissions 3 at [17].

[14] Ministers Submissions 3 at [18].

[15] Ministers Submissions 4 at [19].

[16] Affidavit of Thomas Pattinson, affirmed on 12 March 2025, at [5].