Cheong v Minister for Immigration and Citizenship
[2025] FedCFamC2G 955
•20 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cheong v Minister for Immigration and Citizenship [2025] FedCFamC2G 955
File number(s): SYG 2594 of 2020 Judgment of: JUDGE PAPADOPOULOS Date of judgment: 20 June 2025 Catchwords: MIGRATION – extension of time – seven days out of time – where related judicial review matter dismissed – no arguable case for jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) s 477
Migration Regulations 1994 (Cth) cl 457.223
Cases cited: BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
CAL15 v Minister for Immigration and Border Protection [2016] FCA 1537
MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 38 Date of hearing: 23 May 2025 Place: Sydney Counsel for the Applicants: Mr J R Young Solicitor for the Applicants: Mr J Park of Wentworth Lawyers & Partners Solicitor for the Respondents: Mr M Wong of HWL Ebsworth Lawyers ORDERS
SYG 2594 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JAEHYANG CHEONG
First Applicant
SANG WON PARK
Second Applicant
YEOLMEA PARK
Third Applicant
YENA PARK
Fourth ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE PAPADOPOULOS
DATE OF ORDER:
20 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration and Citizenship’.
2.The name of the second respondent be amended to ‘Administrative Review Tribunal’.
3.The application filed on 17 November 2020 be dismissed.
4.The applicants pay the first respondent’s costs, of and incidental to the application, fixed in the sum of $4,189.38.
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).
REASONS FOR JUDGMENT
JUDGE PAPADOPOULOS
INTRODUCTION
Before the Court is an application filed under s 477(2) of the Migration Act 1958 (Cth) (Act), seeking an extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 6 October 2020.
By that decision, the Tribunal affirmed a decision of a delegate (delegate) of the first respondent (Minister) to refuse to grant the applicants Subclass 457 Temporary Business Entry (Class UC) visas (subclass 457 visas), on the basis that the first applicant was not the subject of an approved nomination.
This application was heard in conjunction with the related matter of G'day Japanese & Korean Restaurant Pty Ltd v Minister for Immigration and Citizenship [2025] FedCFamC2G 954 (G’day Japanese).
The originating application was filed on 17 November 2020 (originating application), seven days after the expiry of the 35-day filing period.
Having not been satisfied that it is necessary in the interests of the administration of justice to grant an extension of the 35-day filing period, the application is dismissed for the following reasons.
BACKGROUND AND RELEVANT FACTS
The first applicant is a national of the Republic of Korea. The second applicant is her husband and the third and fourth applicants are her daughters, both over 18 years of age.
The visa application
On 23 February 2017, the applicants applied for the subclass 457 visas, in connection with the first applicant’s position as a ‘Cook’, with G’day Japanese & Korean Restaurant Pty Ltd named as the sponsoring employer (sponsor).[1]
[1] Court Book (CB) 1 to 16.
On 18 December 2017, the Department wrote to the first applicant inviting her to comment on the fact that the sponsor did not have an approved nomination for her and that, as a result, her visa application was unlikely to succeed.[2] The applicant did not provide a formal response.
[2] CB 92.
On 16 January 2018, a delegate of the Minister refused to grant the applicants 457 visas.[3] The delegate noted that, on 18 December 2017, the Department refused the nomination application lodged by the sponsor and that consequently the applicant was not the subject of an approved nomination and therefore did not meet cl 457.223(4)(a) in Part 457 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
[3] CB 110 to 113.
The review application
On the same day, the applicants applied to the Tribunal for review of the delegate's decision.[4]
[4] CB 114 to 115.
On 28 May 2020, the Tribunal invited the applicants to attend a joint hearing, concurrent with the hearing in relation to the sponsor's review application.[5]
[5] CB 151 to 155.
On 18 June 2020, the first and second applicants attended a joint hearing before the Tribunal which was conducted by telephone. The second applicant attended the hearing for the sponsor in his capacity as director and secretary. The sponsor’s representative also attended and communication between the Tribunal and the parties was facilitated by an interpreter in the Korean and English languages.[6]
[6] CB 244 to 249.
On 24 June 2020, the representative provided joint submissions and further documents.[7]
[7] CB 171.
On 3 August 2020, the Tribunal wrote to the applicants, inviting them to comment or respond to information, that the sponsor's review of the nomination decision had been affirmed by the Tribunal.[8] The applicants did not provide any comments in response.
[8] CB 231 to 233.
The Tribunal’s decision
On 6 October 2020, the Tribunal affirmed the decision not to grant the applicants subclass 457 visas.[9] It noted that, on 31 July 2020, the Tribunal had affirmed the decision not to approve the sponsor's nomination application as it was not satisfied that the position associated with the nominated occupation was genuine.[10]
[9] CB 237 to 240.
[10] CB 239 at [12].
The Tribunal found that cl 457.223(4)(a) was not met as the applicant was not the subject of an approved nomination.[11] Consequently, it affirmed the delegate’s decision to refuse to grant subclass 457 visas to the applicants.[12]
[11] CB 239 at [17]-[19].
[12] CB 239 at [17] to 240 at [20].
RELEVANT LEGISLATION
Section 477 of the Act provides the time limit which applies to proceedings for judicial review of the Tribunal’s decisions in respect of which this Court has jurisdiction and the basis upon which it may be extended. At the date of the Tribunal’s decision, it read as follows:
477 Time limits on applications to the Federal Circuit and Family Court of Australia (Division 2)
(1) An application to the Federal Circuit and Family Court of Australia (Division 2) for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.
PROCEEDINGS IN THIS COURT
The applicant commenced proceedings by way of the originating application filed on 17 November 2020. That application was accompanied by an affidavit attached to which was a copy of the Tribunal’s decision.
As the Tribunal’s decision was dated 6 October 2020, the applicant had until 10 November 2020 to bring this proceeding. Because the application was not filed until 17 November 2020, it was brought seven days out of time.
CONSIDERATION
The consequence of the application before this Court being filed late is that the Court must consider the two limbs of s 477(2) of the Act.
Application in writing specifying reasons
The first limb contained in s 477(2)(a) of the Act is whether the application has been made to the Court in writing detailing why the extension should be granted.
In his originating application, the applicants requested an order be made that time for making the application be extended under s 477 of the Act.
Section 477(2)(a) of the Act is thus satisfied.
Necessary in the interests of the administration of justice
The second limb of s 477(2)(b) allows the Court to grant an extension of time for the filing of an application, if the Court is satisfied that it is necessary in the interests of the administration of justice to make such an order.
In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28 (Tu’uta Katoa) at [12], the High Court observed that the Court’s power to extend time is not focused on the interests of the applicant, rather on the broader interests of the administration of justice. The Act does not specify any criteria which must be satisfied to establish that it is in the interests of the administration of justice to grant an extension of time but the Court may look at a myriad of facts and circumstances including the length of the applicant’s delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application.
The principles regarding an application under s 477(2) were considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49. In that case at [40], Jagot and Halley JJ found that the Court has an obligation to ‘evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice’. Further, their Honours identified that whilst the matters to which regard may be had are not expressly confined by the Act, the following are usually relevant when considering an extension of time – although it is noted that this list is not exhaustive:
(a)the extent of the delay and explanation for it;
(b)any prejudice to the respondent if an extension were granted;
(c)the impact on the applicant if the time was not extended;
(d)the interests of the public at large; and
(e)the merits of the substantive application.
At hearing on 23 May 2025, Counsel for the applicant, Mr Young, submitted that if the related matter of G’day Japanese were to succeed, then so to must the present application by virtue of the interrelated nature of the two applications. Mr Young also conceded that if the related matter were to fail, so to must this application. The Minister’s representative, Mr Wong, agreed with the applicants’ submissions that the outcome of the related matter would so determine the outcome in this proceeding.
Mr Young, however, submitted that if the Court were minded, the Court should exercise its discretion to grant the extension of time, even if I were to ultimately dismiss the substantive application, so as to allow the applicant a right of appeal.
I observe that if the extension of time is refused then the Tribunal’s decision will stand, with all the consequences that follow for the applicants in relation to their subclass 457 visa application. No appeal would lie to the Federal Court of Australia pursuant to s 476A(3)(a) of the Act, however an application to that Court may be made under s 39B of the Judiciary Act 1903 (Cth).
In considering whether to grant an extension of time, Mortimer J, as her Honour then was, in MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203, stated at [6]:
Even in circumstances where the Court is persuaded on the basis of the kinds of factors referred to that an extension of time may be appropriate, the prospects of success of any appeal may be determinative of the manner in which the Court’s discretion should be exercised. That is because it is not in the interests of the administration of justice to utilise the resources of the Court and of other parties where there is no realistic prospect the appeal will succeed if an extension is granted. Such a process also exposes an applicant to the risk of significantly greater legal costs if the appeal is unsuccessful and the Court makes the usual orders as to costs.
In CAL15 v Minister for Immigration and Border Protection [2016] FCA 1537, her Honour Mortimer J also stated the following at [4]:
As the Federal Circuit Court Judge noted in her reasons, the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review. The latter consideration is important because if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.
Having regard to the parties’ respective submissions, and the Federal Court’s remarks, I find it necessary in the current proceedings to first consider whether the applicant has an arguable case of judicial review before considering the other factors.
In the related matter, the sponsor sought judicial review of the Tribunal’s decision to refuse the nomination approval for the first applicant’s position as Cook. I did not find there to be any jurisdictional error on the Tribunal’s part in the related matter and so dismissed that application for judicial review.
As I have found there is no jurisdictional error in the Tribunal’s decision to refuse the nomination approval of the sponsor, it follows that the Tribunal was correct in the present case to affirm the decision of the delegate not to grant the subclass 457 visas on the basis that the first applicant was not the subject of an approved nomination and did not meet the requirements of cl 457.223(4)(a) of the Regulations.
Accordingly, it is not necessary in these circumstances for the Court at this point to have regard to the length of delay, nor the explanation provided for it by the applicant.
CONCLUSION
Therefore, for the above reasons, the application before this Court is dismissed.
I heard the parties in relation to costs and note that the Minister sought costs to be paid by the applicant fixed in the sum of $4,189.38. The applicants submitted, in the event the application was unsuccessful, costs in this amount would not be opposed. 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, affidavit material as well as preparation for and appearance at the hearing. I will so order that the applicants pay the Minister’s costs fixed in the sum of $4,189.38.
Finally, as a consequence of:
(a)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’; and
(b)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 certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos. Associate:
Dated: 20 June 2025
1
6
2