Warring v Minister for Immigration and Citizenship [2025] FedCFamC2G 2096

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 25 February 2021, affirming a decision of a delegate of the first respondent (the delegate) to refuse to grant the applicant a Regional Sponsored Migration Scheme (Subclass 187) (the visa).
2. For the reasons set out below, the application must be dismissed.

1. The applicant is a citizen of India.
2. On 21 December 2016, the applicant applied for the visa on the basis of his nominated occupation of 'Café or Restaurant Manager' with Yogis Traders Pty Ltd (the nominator). On the same day, the nominator lodged an Employer Nomination for a Permanent Appointment within the Regional Sponsored Migration Scheme (the nomination application).
3. On 7 August 2018, the delegate refused to grant the nomination.
4. On 5 September 2018, the delegate refused to grant the applicant's visa on the basis that they were not satisfied that there was an approved nomination and therefore found cl 187.233(3) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) was not met.
5. On 25 September 2018, the applicant sought merits review of the delegate's decision by the Tribunal.
6. On 24 December 2020, the Tribunal wrote to the applicant under s 359A of the Migration Act 1958 (Cth) (the Act) and invited him to comment or respond to information (first s 359A invitation).
7. On 3 February 2021, the Tribunal wrote to the applicant pursuant to s 359A of the Act and invited him to comment on or respond to information (second s 359A invitation).
8. On 9 February 2021, the Tribunal wrote to the applicant pursuant to s 359A of the Act and invited him to comment on or respond to information (third s 359A invitation).
9. On 25 February 2021, the Tribunal affirmed the decision under review from the delegate.
10. The applicant now seeks judicial review of the Tribunal's decision in this Court.

1. At [1]-[11], the Tribunal set out the application for review, the background of the matter, and the criteria for the provision of the visa.
2. The Tribunal identified the issue was whether the applicant met the requirements of cl 187.233 of the Regulations [17]-[19].
3. At [24] - [25] of its decision, the Tribunal recorded that it invited the applicant to comment or respond under s 359A of the Act as to the fact that the nomination application had been refused.
4. The Tribunal identified that the applicant's response to the third s 359A invitation did not contain any evidence to suggest that the visa application was subject to a nomination that had been approved and not subsequently withdrawn.
5. The Tribunal was satisfied that the applicant was afforded adequate time to provide information to the Tribunal, and that there was no discretion within the Act or the Regulations to waive the requirements of cl 187.233 [27]-[28].
6. The Tribunal found that the nomination application associated with the position was not approved, and therefore applicant did not meet cl 187.233(3) [30].
7. As the applicant made no claims in respect of the other visa streams, the Tribunal noted that the decision under review must be affirmed [34].
8. Accordingly, the Tribunal affirmed the decision not the grant the applicant the visa [35].

1. The applicant advances three grounds of judicial review contained in an Originating Application filed with the Court on 25 March 2021. The grounds contain particulars that are the same as those alleged in the nominator's now discontinued judicial review proceedings (SYG392/2021). The grounds of review in these proceedings are as follows (errors in original):

1. The first Respondent (Department of Home Affairs) erred in its decision as

a) Due consideration was not given to the fact of the Applicant's circumstances

Particulars

1. The Applicant did provide all the roles and responsibilities of the nominated position however they were not considered.

2. The Second Respondent failed to consider that fact that required documents were provided by the Applicant before the decision was made.

   a) The Administrative Appeal Tribunal failed to consider the current circumstances of the Applicant.

Particulars

a) The Applicant had provided all the financial information as well as the personal circumstances including downturn in business due to covid in which he was not working full time

1. The Second Respondent failed to consider that the fact that 2.59(j)ii) of the Migration Regulations which states that Tribunal could do so when it is reasonable to disregard regulation 5.19(3).

1. The Court notes at this particular juncture that the above grounds are essentially otiose or irrelevant as they do not address the fatal flaw in the application being that the applicant was not the subject of an approved employer nomination.

1. The applicant appeared before the Court unrepresented by telephone. At the hearing, the applicant was assisted by a Hindi interpreter.
2. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court Book, that the respondent's written submissions had been provided to him, that the submissions had been interpreted to him, and that he understood them. The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wish to.
3. At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
4. Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of his case.
5. The Court carefully explained that the issue in this case was that in order for the applicant to be granted the type of visa he sought, as at the time of the decision in relation to his visa, he needed to have an approved employer nomination. The applicant did not. Thus, notwithstanding any other matter, the Tribunal were obliged to affirm the decision to refuse him a visa as a matter of law.
6. In the applicant's oral submissions to the Court, which were difficult to follow as he continuously talked over the interpreter, the applicant argued that in 2016 the department had approved the same position under the previous 457 visa regime. The applicant stated that he had done the job full time during the period of 2016 to 2019, but for reasons outside his control he worked part time for a period and then started working full time after that.
7. The applicant stated that the visa issue he faced was not as a result of any fault on his part and in those circumstances, he did not understand why his visa had been refused.

1. Ground One alleges the delegate erred by failing to give due consideration to the roles and responsibilities of the nominated position. Paragraph [12] of the applicant's supporting affidavit can also be read as a submission alleging error in the delegate's decision. As per s 476(2)(a) and (4) of the Act, this Court has no jurisdiction to review the delegate's decision as it is a primary decision. Accordingly, Ground One cannot succeed.
2. Grounds Two and Three, as well as paragraphs [12]-[13] and [15] of the supporting affidavit are directed towards the Tribunal's decision in respect of the nomination application, the applicant does not have standing to seek judicial review of that decision. Reliance is placed on s 486C(2)(a) and s 479(a) of the Act.
3. Ground Two is an unparticularised assertion that the Tribunal failed to have regard to documents provided by the applicant. While the Tribunal had regard to the applicant's response to the first and third s 359A invitations, it found on the information provided that the applicant was not the subject of an approved nomination as required by cl 187.233(3). Given this finding, the Tribunal was not required to go on to consider the other criteria or the applicant's circumstances.
4. By Ground Three, the applicant contends that the Tribunal failed to consider reg 2.59(j)(ii) of the Regulations. Regulation 2.59(j)(ii) did not exist as at the time of the application. This ground is accordingly misconceived.
5. It would be futile to remit this matter to the Tribunal, as the Tribunal would be bound to find that cl 187.233 is not satisfied and to affirm the decision: Singh v Minister for Immigration and Border Protection [2017] FCAFC 105; (2017) 253 FCR 267 at [81]- [90].
6. Clause 187.233(3) requires the nomination of the position identified in the visa application to be approved by the first respondent. The relevant nomination application in this case was refused by a delegate on 7 August 2018, and that decision affirmed by the Tribunal on 8 February 2021. Whilst the nominator had sought judicial review of the Tribunal's decision dated 8 February 2021, those proceedings were discontinued on 25 November 2025.

1. The essential flaw in this application for judicial review is that, as outlined above, the applicant is not the subject of an approved nomination by an employer. In those circumstances, the Tribunal had no option other than to refuse the applicant's visa application.
2. The grounds of judicial review advanced by the applicant are otiose or irrelevant and they fail to come to grips with the fatal flaw in the application, that the applicant was not the subject of an approved employer nomination. Even if one of the grounds of judicial review had merit, which in my view they do not, I would not grant constitutional writs remitting the matter back to the Tribunal, as the Tribunal would be bound to make the same decision.
3. The applicant's nominee application is bound to his employer's nomination application. The nominator's application, having been discontinued in this Court, proves a complete bar to the applicant succeeding, even if his grounds of judicial review had merit.

1. In circumstances where the applicant has no approved employer nomination, this application for judicial review must be dismissed with costs.

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