Cui v Minister for Immigration

[2019] FCCA 2492

FEDERAL CIRCUIT COURT OF AUSTRALIA

CUI & ANOR v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2492

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a temporary business entry visa – no approved sponsorship – general errors alleged – no jurisdictional error.

Legislation:

Migration Regulations 1994 (Cth)

Cases cited:

Southland International Group Pty Ltd v Minister for Immigration & Anor [2019] FCCA 2490

First Applicant: YULONG CUI

Second Applicant: WANHONG CHENG

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1972 of 2018

Judgment of: Judge Driver

Hearing date: 4 September 2019

Delivered at: Sydney

Delivered on: 4 September 2019

REPRESENTATION

The First Applicant appeared in person

Counsel for the Respondents: Mr N Swan

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application filed on 16 July 2018 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

3. The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1972 of 2018

YULONG CUI

First Applicant

WANHONG CHENG

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. The applicant, Mr Cui, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 July 2018.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Cui and his wife a temporary business entry visa. 

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 9 April 2019.  In large part, those facts traverse the history of related proceedings involving the sponsor Southland International Pty Ltd (Southland).[1]  In relation to Mr Cui personally, I adopt as background the Minister’s submissions.

   [1] Southland International Group Pty Ltd v Minister for Immigration & Anor [2019] FCCA 2490

3. The Tribunal observed that one criterion Mr Cui had to satisfy at the time of the Tribunal’s decision was clause 457.223(4) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which required that there to be an approved nomination of an occupation relating to Mr Cui.[2]  The Tribunal further observed that Mr Cui had been nominated by Southland and that, on 15 June 2018, the Tribunal had affirmed the delegate’s decision not to approve the nomination.[3]

   [2] Court Book (CB) 245 [3], [8]

   [3] CB 245-246 [9]-[11]

4. The Tribunal concluded that, on the evidence before it, there was not an approved nomination in respect of Mr Cui.  Accordingly, Mr Cui could not satisfy clause 457.223(4)(a).  The Tribunal accordingly affirmed the delegate’s decision to refuse to grant the visa to Mr Cui.[4]

   [4] CB 246 [14]-[17]

The present proceedings

1. These proceedings began with a show cause application lodged on 16 July 2018.  Mr Cui now relies upon an amended application filed on 26 November 2018.  There are two grounds in that application:

   1.The decision of the Tribunal was affected by jurisdictional error and failed to complete the exercise of its jurisdiction.

   2.The Tribunal failed to properly apply the law in relation to the review of the related nomination decision (the subject of proceedings SYG1974/2018) and hence made a jurisdictional error in affirming the refusal of the subclass 457 visa application in consequence of its decision to affirm the refusal of the nomination decision.

2. I have before me as evidence the court book lodged on 29 August 2018 and filed on 30 August. 

3. The simple position in this case is that upon the failure of the Southland application before the Tribunal, only one outcome was possible in respect of Mr Cui’s case.  It was an essential criterion for the class of visa he sought that there be an approved nomination, and upon the rejection of Southland application, that essential criterion was missing.  This is effectively recognised by Mr Cui in his oral submissions this afternoon. 

4. The Minister’s submissions deal with the grounds advanced, and I agree with them. 

Ground 1

1. This ground alleges that the Tribunal’s decision “was affected by jurisdictional error and failed to complete the exercise of its jurisdiction”.  No particulars or further explanation is given and, without more, the ground cannot succeed.

Ground 2

1. This ground alleges that the Tribunal “failed to properly apply the law in relation to the review of the related nomination decision…and hence made a jurisdictional error in affirming the refusal of [Mr Cui’s visa application]”.  This ground appears, in substance, to allege that the Tribunal’s decision concerning Southland was affected by jurisdictional error and the Tribunal’s reliance on that refusal, in the course of affirming the delegate’s decision about Mr Cui, amounted to jurisdictional error.  However, for the reasons in Southland,[5] the Tribunal did not fall into jurisdictional error in the Southland proceeding.  Accordingly, no jurisdictional error occurred in the Tribunal’s decision on Mr Cui’s application.

   [5] op cit

Conclusion

1. Mr Cui is unable to demonstrate that the decision of the Tribunal in his case is affected by any jurisdictional error.  The decision is, therefore, a privative clause decision, and the application must be dismissed.  I will so order.

2. The Minister sought a costs order and Mr Cui did not oppose it.  I will order in relation to the matter involving Mr Cui personally that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:         6 September 2019