Eugene Cho Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 2020
•31 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Eugene Cho Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2020
File number(s): PEG 60 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 31 August 2021 Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – employer nomination – whether certification as to conduct constituting a contravention – whether time of application or up to time of decision requirement for certification – whether regulations misconstrued – whether jurisdictional error
STATUTORY INTERPRETATION – Delegated legislation – interpretation – principles
WORDS AND PHRASES – “must” – “and” – “accompanied by” – “include” – “written certification”
Legislation: Acts Interpretation Act 1901 (Cth) ss 15AA, 15AB
Australian Constitution s 75(v)
Migration Act1958 (Cth) ss 245AR, 347, 476, 477
Migration Regulations 1994 (Cth) reg 5.19, Sch 2, cll 485.223, 487.216
Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27; (2009) 83 ALJR 1152; (2009) 73 ATR 256; (2009) 260 ALR 1
Anand v Minister for Immigration and Citizenship [2013] FCA 1050; (2013) 215 FCR 562; (2013) 136 ALD 633
Aomatsu v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 139; (2005) 146 FCR 58; (2005) 219 ALR 611; (2005) 86 ALD 56
Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR 314; (1995) 22 AAR 261; (1995) 134 ALR 51; (1995) 39 ALD 481
Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 264 ALR 417; (2010) 84 ALJR 251; (2010) 114 ALD 1
Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318; (2001) 109 FCR 364; (2001) 183 ALR 123; (2001) 65 ALD 95
Bussa v Minister for Immigration & Anor [2019] FCCA 655
Bussa v Minister for Immigration and Border Protection [2019] FCA 1994
Bussa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] HCA 18; (2020) 94 ALJR 497; (2020) 377 ALR 228
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384; (1997) 71 ALJR 312; (1997) 141 ALR 618
Collector of Customs v Agfa-Gevaert Limited [1996] HCA 36; (1996) 186 CLR 389; (1996) 71 ALJR 123; (1996) 35 ATR 249; (1996) 24 AAR 282; (1996) 141 ALR 59; (1996) 43 ALD 193; (1996) 96 ATC 5240
Khan v Minister for Immigration and Border Protection [2018] FCAFC 85
King Gee Clothing Co Pty Ltd v Commonwealth [1945] HCA 23; (1945) 71 CLR 184; [1945] ALR 397; (1945) 19 ALJ 239
Kosovich v Mancini (1982) 31 SASR 272
Lavan Legal v Kenyon [2017] FCCA 2529; (2017) 326 FLR 20
Minister for Home Affairs v Parata [2021] FCAFC 46
NguyenvMinister for Immigration & Anor [2016] FCCA 1523; (2016) 310 FLR 339
Posner v Collector for Inter-State Destitute Persons (Victoria) [1946] HCA 50; (1946) 74 CLR 461; [1947] VLR 276; [1947] ALR 61; (1946) 20 ALJ 444
Wang v Minister for Immigration and Multicultural Affairs [1997] FCA 70; (1997) 71 FCR 386; (1997) 151 ALR 717; (1997) 45 ALD 104
Number of paragraphs: 81 Date of last submission/s: 23 March 2021 Date of hearing: 23 March 2021 Place: Perth Counsel for the Applicant: Mr D. Blades Solicitor for the Applicant: Munro Doig Lawyers Counsel for the Respondents: Mr P. Hannan Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 60 of 2020 BETWEEN: EUGENE CHO PTY LTD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
31 AUGUST 2021
THE COURT ORDERS THAT:
1.Pursuant to s 477(2) of the Migration Act 1958 (Cth) the time in which to file the applicant’s originating application for judicial review under s 476 of the Migration Act 1958 (Cth) be extended to 18 February 2020.
2.The originating application filed 18 February 2020, as amended on 8 December 2020, be dismissed.
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
On 18 February 2020 the applicant, Eugene Cho Pty Ltd (“Eugene Cho”) filed an application for an extension of time (“Extension of Time Application”) under s 477(2) of the Migration Act1958 (Cth) (“Migration Act”) for the filing of an application for judicial review (“ Judicial Review Application”) under s 476 of the Migration Act. On 8 December 2020 Eugene Cho filed an Amended Judicial Review Application (“Amended Judicial Review Application”) in accordance with the Orders of a Registrar of this Court dated 9 July 2020, 10 September 2020 and 26 November 2020
The first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), does not oppose the Extension of Time Application. In the circumstances, the Court is therefore satisfied that it is in the interests of the administration of justice to grant the Extension of Time Application: Migration Act, s 477(2). There will therefore be an order that the time for the filing of the Judicial Review Application be extended to the time of filing of the Extension of Time Application, namely, 18 February 2020.
The Amended Judicial Review Application seeks review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 3 December 2019. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the Minister to refuse Eugene Cho’s application for approval of a nomination of a position in Australia (“Employer Nomination”) under reg 5.19 of the Migration Regulations 1994 (Cth) (“Migration Regulations”).
At the hearing of the Amended Judicial Review Application:
(a)the two volumes of the Court Book (“CB”) were marked as Exhibits 1A and 1B respectively:
(b)the Explanatory Statement, Select Legislative Instrument No 242 of 2015 was marked as Exhibit 2;
(c)the affidavits of:
(i)Michaela Jean Ganon sworn 19 November 2020 (“Ganon Affidavit”); and
(ii)In Ae Cho sworn 18 February 2020 (“Cho Affidavit”),
were read.
The Tribunal Decision is in evidence at CB 1075-1081.
AMENDED JUDICIAL REVIEW APPLICATION
The Amended Judicial Review Application contains two grounds of review.
Ground 1 is as follows:
1.The Tribunal made a jurisdictional error by misconstruing regulation 5.19(2)(aa) of the Migration Regulations 1994 (Cth) as requiring the Applicant to provide a written certification under section 245AR(1) of the Migration Act 1958 (Cth) ("Act") "at the time of application" of the nomination.
PARTICULARS
(1) Regulation 5.19(2)(aa) provides, in relation to a nomination application, that "the application must ... include a written certification [under subsection 245AR(1) of the Act]".
(2) The requirement in regulation 5.19(2)(aa) may be satisfied at the time of decision of the nomination, including the time of the Tribunal's decision.
(3) Whist the Applicant did not provide the written certification at the time of making the nomination application, the Applicant did provide the written certification prior to the Tribunal's decision (CB 1046).
(4) The Tribunal read into the words of regulation 5.19(2)(aa) a requirement that the inclusion of the written certification must be done at the time of nomination application.
(5) As a result, the Tribunal incorrectly held that the "application did not include a written certification ... and therefore the requirement in r 5.19(30(a) [sic] is not met' (Decision Record, paragraph 37) (CB 1079).
(6) By doing so, the Tribunal added an impermissible gloss to the words in regulation 5.19(2)(aa).
(Emphasis in original)
Ground 2 was not pursued.
LEGISLATION
It was common ground at hearing: Transcript, p 3, that reg 5.19 of the Migration Regulations as in force prior to 18 March 2018 was the version of that regulation relevant to the Employer Nomination and which relevantly provided as follows:
5.19 Approval of nominated positions (employer nomination)
(1) A person (a nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2) The application must:
(a) be made in accordance with approved form 1395 (Internet); and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b) be accompanied by the fee mentioned in regulation 5.37.
Temporary Residence Transition nomination
(3) The Minister must, in writing, approve a nomination if:
(a) the application for approval:
(i) is made in accordance with subregulation (2); and
(ii)identifies a person who holds a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and
(iii) identifies an occupation, in relation to the position, that:
(A) is listed in ANZSCO; and
(B) has the same 4‑digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 (Temporary Work (Skilled)) visa; and
(b) the nominator:
(i)is, or was, the standard business sponsor who last identified the holder of the Subclass 457 (Temporary Work (Skilled)) visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and
(ii) is actively and lawfully operating a business in Australia; and
(iii)did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and
(c) either:
(i) both of the following apply:
(A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 (Temporary Work (Skilled)) visa identified in subparagraph (a)(ii) has:
(I)held one or more Subclass 457 visas for a total period of at least 2 years; and
(II)been employed in the position in respect of which the person holds the Subclass 457 (Temporary Work (Skilled)) visa for a total period of at least 2 years (not including any period of unpaid leave);
(B) the employment in the position has been full‑time, and undertaken in Australia; or
(ii) all of the following apply:
(A)the person holds the Subclass 457 (Temporary Work (Skilled)) visa on the basis that the person was identified in a nomination of an occupation mentioned in sub‑subparagraph 2.72(10)(d)(iii)(B) or sub‑subparagraph 2.72(10)(e)(iii)(B);
(B) the nominator nominated the occupation;
(C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 (Temporary Work (Skilled)) visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and
(d) for a person to whom subparagraph (c)(i) applies:
(i)the person will be employed on a full‑time basis in the position for at least 2 years; and
(ii)the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e) the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i) are provided; or
(ii) would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f) either:
(i) the nominator:
(A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and
(B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or
(ii) it is reasonable to disregard subparagraph (i); and
Note:Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that day.
(g) either:
(i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii) it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(h) the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
Section 245AR(1) of the Migration Act, specifically referred to in reg 5.19(2)(aa) of the Migration Regulations, provides that it is contravened by a person asking for or receiving a benefit in return for the occurrence of a sponsorship-related event. If s 245AR(1) of the Migration Act is contravened the contravener commits an offence in relation to which a civil penalty may be imposed: Migration Act, s 245AR(1), (4) and (5). In s 245AQ of the Migration Act “sponsorship-related event” is defined, but it is not necessary to set out that definition for present purposes.
BACKGROUND
The relevant background up to the time of the Tribunal Decision is as follows:
(a)Eugene Cho is a business trading as Yuki Japanese Restaurant in Willeton, Western Australia: CB 76;
(b)the nominated person, Mr I Nengah Sutama Adi Wihendra, is a citizen of Indonesia, currently residing in Western Australia, whose spouse and three children are listed as migrating family members included in the Employer Nomination: CB 6-8;
(c)on 24 June 2016 Eugene Cho applied for the Employer Nomination: CB 1-9.
(d)on 24 June 2016 the Delegate caused a letter (“24 June 2016 Letter”) to be written to Eugene Cho: CB 11-17, which included advice that Eugene Cho “must complete and sign the attached mandatory Certification form and attach a copy to your ImmiAccount within seven (7) days”: CB 11;
(e)the form referred to in the 24 June 2016 letter is headed “Certification Form – Paying for visa sponsorship” and requires the nominator to certify that have “engaged” or “not engaged” “in conduct in relation to this nomination that constitutes a contravention of subsection 245AR(1)” of the Migration Act: CB 14-17 (“Section 245AR Certificate”);
(f)Eugene Cho did not respond to the Delegate’s 24 June 2016 letter;
(g)on 9 February 2017 the Delegate refused the Employer Nomination, finding that Eugene Cho had not complied with the obligations under Division 2.19 of the Migration Regulations 1994 (Cth) (“Migration Regulations”) relating to training requirements during Eugene Cho’s most recent period as a standard business sponsor. The Delegate’s Decision did not refer to the Section 245AR Certificate requirement: CB 23-31;
(h)on 1 March 2017 Eugene Cho applied to the Tribunal for review of the Delegate’s Decision to refuse the Employer Nomination: CB 32-34;
(i)on 10 September 2019 the Tribunal sent Eugene Cho an invitation to provide information concerning Eugene Cho’s compliance with reg 5.19(2) and (3) of the Migration Regulations, but the request to provide information did not mention any requirement related to the Section 245AR Certificate: CB 81-86:
(j)on 26 September 2019 the Tribunal invited Eugene Cho to attend a hearing: CB 99-101 (“Tribunal Hearing”);
(k)on 4 October 2019 Eugene Cho responded to the invitation to attend the Tribunal Hearing: CB 102-107;
(l)on 18 October 2019 Eugene Cho sent the Tribunal a number of documents addressing the invitation to provide information: CB 111-1010;
(m)on 25 October 2019 representatives of Eugene Cho (including a migration agent) attended the Tribunal Hearing. The Tribunal Hearing was adjourned: CB 1076 at [5];
(n)on 28 October 2019 Eugene Cho sent an email to the Tribunal responding to issues raised during the Tribunal Hearing: CB 1017-1021;
(o)on 31 October 2019 the Tribunal wrote to Eugene Cho advising that the Tribunal Hearing would be resumed on 26 November 2019: CB 1027-1029. On 7 November 2019, Eugene Cho responded to the invitation to attend: CB 1030-1032;
(p)on 20 November 2019 Eugene Cho provided the Tribunal with additional submissions dated 20 November 2019, and supporting documents, including a signed Section 245AR Certificate dated 6 November 2019: CB 1033-1059;
(q)on 26 November 2019 representatives of Eugene Cho (including a migration agent) attended the resumed Tribunal Hearing: CB 1076 at [6];
(r)on 27 November 2019 Eugene Cho provided the Tribunal with additional submissions dated 26 November 2019 and supporting documents: CB 1060-1071; and
(s)on 3 December 2019 the Tribunal Decision affirmed the Delegate’s Decision: CB 1073-1079.
TRIBUNAL DECISION
The Tribunal considered whether Eugene Cho met the requirements for approval of the Employer Nomination under the Temporary Residence Transition nomination stream set out in reg 5.19(3) of the Migration Regulations, including, relevantly, that the Employer Nomination be made in accordance with reg 5.19(2) of the Migration Regulations (which is set out at [9] above)
In relation to reg 5.19(2)(aa) of the Migration Regulations, and the requirement therein for an applicant to provide written certification relating to conduct that contravenes s 245AR(1) of the Migration Act, the Tribunal found that:
(a)this was a time of application requirement; CB 1077-1078, Tribunal Decision at [18] and [23]; and
(b)it had no discretion in this matter, and because the application did not include a written certification stating whether or not Eugene Cho had engaged in conduct in relation to the Employer Nomination that contravenes s 245AR(1) of the Migration Act, the requirement in reg 5.19(3)(a) of the Migration Regulations to meet reg 5.19(2) of the Migration Regulations was not met: CB 1079, Tribunal Decision at [37].
The Tribunal, therefore, affirmed the Delegate’s Decision: CB 1079, Tribunal Decision at [39].
SUBMISSIONS
It is unnecessary to set out in detail the lengthy written and oral submissions of the parties. It suffices to observe that concerning the requirement in reg 5.19(2)(aa) of the Migration Regulations for written certification stating whether or not Eugene Cho had engaged in conduct in relation to the Employer Nomination that contravenes s 245AR(1) of the Migration Act:
(a)Eugene Cho submitted that this was not a time of application requirement and that by finding that it was a time of application requirement the Tribunal had committed jurisdictional error; and
(b)the Minister submitted that this was a time of application requirement but that in any event the requirement had not been complied with by Eugene Cho, and that there was no jurisdictional error in the Tribunal Decision.
CONSIDERATION
Issues
The principal issue for determination is whether the requirement in reg 5.19(2)(aa) of the Migration Regulations for written certification stating whether or not Eugene Cho had engaged in conduct in relation to the Employer Nomination that contravenes s 245AR(1) of the Migration Act was or was not a time of application requirement.
A possible secondary issue for determination is whether, in any event, the requirement in reg 5.19(2)(aa) of the Migration Regulations, for written certification stating whether or not Eugene Cho had engaged in conduct in relation to the Employer Nomination that contravenes s 245AR(1) of the Migration Act, had or had not been complied with by Eugene Cho.
The construction of delegated legislation
The general principles relating to the interpretation of statutes apply also to the interpretation of delegated legislation: Collector of Customs v Agfa-Gevaert Limited [1996] HCA 36; (1996) 186 CLR 389; (1996) 71 ALJR 123; (1996) 35 ATR 249; (1996) 24 AAR 282; (1996) 141 ALR 59; (1996) 43 ALD 193; (1996) 96 ATC 5240; CLR at 398 per Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ; King Gee Clothing Co Pty Ltd v Commonwealth [1945] HCA 23; (1945) 71 CLR 184; [1945] ALR 397; (1945) 19 ALJ 239; CLR at 195 per Dixon J.
In interpreting a statute to determine its true meaning a court begins with a consideration of the text, which must be read in context and having regard to the statutory purpose or object: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27; (2009) 83 ALJR 1152; (2009) 73 ATR 256; (2009) 260 ALR 1; (“Alcan Alumina”) CLR at [46]-[47] per Hayne, Heydon, Crennan and Kiefel JJ; CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384; (1997) 71 ALJR 312; (1997) 141 ALR 618 (“CIC Insurance”), CLR at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ. The central task is to discern the meaning of the legislative text and give effect to the identified purpose if it is one that is reasonably open on the text. The interpretation best open on the text which achieves the purpose or object of the statute is to be preferred to each other interpretation (even if the purpose or object is not expressly stated in the text): Acts Interpretation Act 1901 (Cth), s 15AA (“Interpretation Act”).
In CIC Insurance, CLR at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ a majority of the High Court observed as follows:
It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.
Section 15AA of the Interpretation Act provides as follows:
15AA Interpretation best achieving Act’s purpose or object
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
The provisions of s 15AB of the Interpretation Act permit the Court to examine extrinsic material where the provision is ambiguous or obscure. Section 15AB of the Interpretation Act provides as follows:
15AB Use of extrinsic material in the interpretation of an Act
(1) Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b) to determine the meaning of the provision when:
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
(2) Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of an Act includes:
(a) all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer;
(b) any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of the Parliament before the time when the provision was enacted;
(c) any relevant report of a committee of the Parliament or of either House of the Parliament that was made to the Parliament or that House of the Parliament before the time when the provision was enacted;
(d) any treaty or other international agreement that is referred to in the Act;
(e) any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted;
(f) the speech made to a House of the Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill containing the provision be read a second time in that House;
(g) any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section; and
(h) any relevant material in the Journals of the Senate, in the Votes and Proceedings of the House of Representatives or in any official record of debates in the Parliament or either House of the Parliament.
Construction of reg 5.19 of the Migration Regulations
Plainly the purpose of reg 5.19 of the Migration Regulations is to:
(a)provide a mechanism for a person to apply to the Minister for approval of the nomination of a position in Australia: Migration Regulations, reg 5.19(1);
(b)set out the form and necessary content of the application: Migration Regulations, reg 5.19(2)(a) and (aa);
(c)provide for a fee to be payable for the making of the application: Migration Regulations, reg 5.19(2)(b); and
(d)set out the criteria to be satisfied for the Minister to approve a nomination: Migration Regulations, reg 5.19(3).
The chapeau to reg 5.19(2) of the Migration Regulations provides that “[t]he application must”. The use of “must” is indicative of an imperative command: The Shorter Oxford English Dictionary on Historical Principles, Volume II (Oxford: Clarendon Press, 1973), page 1376 (“Shorter Oxford English Dictionary”), in this case, a positive command, expressing necessity in the sense of an obligation to fulfil the requirements set out in the paragraphs (a), (aa) and (b) to reg 5.19(2) of the Migration Regulations: Posner v Collector for Inter-State Destitute Persons (Victoria) [1946] HCA 50; (1946) 74 CLR 461; [1947] VLR 276; [1947] ALR 61; (1946) 20 ALJ 444; CLR at 490 per Williams J; Kosovich v Mancini (1982) 31 SASR 272 at 275-276 per Millhouse J; Wang v Minister for Immigration and Multicultural Affairs [1997] FCA 70; (1997) 71 FCR 386; (1997) 151 ALR 717; (1997) 45 ALD 104, FCR at 391 per Merkel J.
Each of paragraphs (a), (aa), and (b) of reg 5.19(2) of the Migration Regulations is connected by the word “and”. In Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR 314; (1995) 22 AAR 261; (1995) 134 ALR 51; (1995) 39 ALD 481 (“Adams”) the Full Court of the Federal Court was dealing with fisheries management legislation, and in particular, a provision which provided that certain objectives “must be pursued by the Minister and the Authority in the administration of the Act, … and by the Authority in the performance of its functions”. Each of the five objectives was conjoined by the use of the word “and”. The Full Court of the Federal Court held that the use of the word “must”, and the linking of each of the five objectives with the word “and”, meant that each objective must be pursued by the Minister and by the Authority: Adams at 332 per Sheppard J (with whom Tamberlin J at 334 and Lehane J at 336 agreed).
Recently, in Minister for Home Affairs v Parata [2021] FCAFC 46 (“Parata”), the Full Court of the Federal Court was dealing with a review of a cancellation decision under Part 5 of the Migration Act, and in relation to s 347(1) of the Migration Act, which is relevantly in the following terms:
(1) An application for review of a Part 5-reviewable decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within the prescribed period, …
… and
(c) be accompanied by the prescribed fee (if any) …
observed that it “specifies the requirements for an application for review of the decision in mandatory terms”. Relevantly, those provisions in s 347(1) of the Migration Act are not dissimilar to those in reg 5.19(2) of the Migration Regulations.
It follows from the above that the Court is of the view that the requirements in reg 5.19(2) of the Migration Regulations are mandatory, and must be met by an applicant.
None of the above assists, however, in determining the issue in these proceedings as to whether the requirement in reg 5.19(2)(aa) of the Migration Regulations for written certification stating whether or not Eugene Cho had engaged in conduct in relation to the Employer Nomination that contravenes s 245AR(1) of the Migration Act was or was not a time of application requirement, and it is necessary to further consider reg 5.19(2) of the Migration Regulations and its constituent parts in more detail.
Regulation 5.19(2)(a) of the Migration Regulations can only be interpreted in one way: it requires that the “application must … be made in accordance” with the specified “approved form”. There is no other way, as the application can only be on the approved form, and that is plainly something that can only be done at the time the application is made. It follows that reg 5.19(2)(a) of the Migration Regulations is a time of application criteria.
Before considering reg 5.19(2)(aa) of the Migration Regulations it is convenient to consider reg 5.19(2)(b) of the Migration Regulations, which requires that the application must be “accompanied by” the necessary fee. The interpretation of reg 5.19(2)(b) of the Migration Regulations is important for the construction of reg 5.19(2) of the Migration Regulations as a whole. The Minister submitted that reg 5.19(2)(a) and (b) of the Migration Regulations were time of application criteria and it, therefore, followed that it was the intention of the drafters that reg 5.19(2)(aa) of the Migration Regulations also be a time of application criteria.
In Parata at [98] per Charlesworth and Jackson JJ the majority of the Full Court of the Federal Court, dealing with s 347(1) of the Migration Act (as set out at [26] above), observed that:
The requirement that the application be “accompanied by” the fee might be flexible enough to mean that the application and the fee need not be given to the Tribunal at the exact same time: see the discussion in Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364 at [56] – [58]. But it must at least require that the fee be paid before the review is conducted; if the fee is paid after the application is determined, there is no meaningful sense in which the application was “accompanied by” the fee.
In Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318; (2001) 109 FCR 364; (2001) 183 ALR 123; (2001) 65 ALD 95 (“Braganza”) at [56]-[58] per Wilcox, Weinberg and Stone JJ the Full Court of the Federal Court allowed an appeal against a Migration Review Tribunal decision. The Migration Review Tribunal decision had found that an application for review accompanied by a request for a fee waiver under the Migration Regulations was invalid because an applicant had not paid the prescribed fee. In Braganza the Full Court of the Federal Court at [52] per Wilcox, Weinberg and Stone JJ said that particular regard had been had to the words “if any” in s 347(1)(c) of the Migration Act in concluding, at [51] per Wilcox, Weinberg and Stone JJ, that;
… where an applicant for a visa makes an application for a waiver of the prescribed fee in accordance with reg 4.13, and that application is made within the prescribed period, the application for review may be entertained; provided that the fee is either eventually waived, or paid within a reasonable time after the application for waiver is rejected. That is, s 347(1)(c) should be read as being subject to the qualification that, provided an application for a waiver of the fee has been made within the prescribed period, the MRT is not prevented from considering the application for review merely because the prescribed fee has not been paid within the prescribed time
In Braganza the Full Court of the Federal Court at [53] per Wilcox, Weinberg and Stone JJ also said that:
In our opinion s 347(1)(c) must be read in conjunction with s 504(1)(b) of the Act. The legislature is hardly likely to have introduced a provision which requires an application for review of an MRT-reviewable decision “to be accompanied by the prescribed fee (if any)”, in conjunction with a provision which authorises the making of regulations which allow for the waiver of any such fee, without recognising that applicants who seek waiver may not be in a position to pay the fee, even on a refundable basis, within the prescribed period.
In Anand v Minister for Immigration and Citizenship [2013] FCA 1050; (2013) 215 FCR 562; (2013) 136 ALD 633 (“Anand”) an application for a skilled sponsored visa had been refused because the application was not accompanied by evidence of a police clearance. The evidence of a police clearance was required by cl 487.216 of Sch 2 to the Migration Regulations which (see Anand at [11] per Katzmann J) provided as follows:
487.21 Criteria to be satisfied at time of application
…
487.216 The application is accompanied by evidence that:
(a) the applicant; and
(b) each person included in the application who is at least 16;
has applied for an Australian Federal Police check during the 12 months immediately before the day when the application is made.
The argument in Anand, set out at [12] per Katzmann J, was essentially the same as that in these proceedings:
In a nutshell the argument in the court below and in this Court was that, despite the heading, the criterion need not be satisfied at the time of application and it would be unjust so to construe it. Rather, it is sufficient compliance with cl 487.216 that the relevant evidence is supplied to either the Minister (or his or her delegate) in the first instance or the tribunal on review at any time before either makes a decision on the application. The argument must be rejected.
In Anand the Federal Court observed that “accompanied” is not defined in the Migration Regulations: Anand at [19] per Katzmannn J (or, it might be added, the Migration Act), and:
(a)went on to say: Anand at [19] per Katzmannn J, that:
It is therefore necessary to look to the ordinary meaning of the word. The Oxford English Dictionary defines “accompany” as:
- to be present or occur at the same time as;
- to add or join (a thing ... ) with another; to supplement with. Also with by.
(b)“[a]ccompanied by” could have either or both of the above meanings, and it was necessary to have regard to matters of context and purpose, which included the heading to the relevant clause: Anand at [20]-[21] per Katzmann J.
In Anand at [27]-[31] per Katzmann J the Federal Court set out its reasoning and conclusions as follows:
27It seems to me that the intention of the regulations is to ensure that the application is not processed unless it meets certain criteria. That is why the relevant evidence is to accompany the application. Consistent with that purpose the evidence should be submitted with or at the same time as the application. Certainly that appears to be the object of the provision. Yet, it is not necessarily inconsistent with that purpose that the evidence is submitted after the visa application is lodged, although how long after is another question. There is force in Mr Karp’s submission that there is some flexibility or elasticity in the phrase “accompanied by” (see, for example, Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99 at 103, Winkler v Director of Public Prosecutions (1990) 25 FCR 79 at 96). It would seem that the delegate had the same view. Why else send the letter of 10 June 2009 requesting the evidence? In this respect I think that both the tribunal and the federal magistrate construed the words of cl 487.216 too narrowly. The next question is what, if anything, turns on this error of construction.
What are the consequences of the error?
28For the above reasons I am prepared to accept that evidence accompanying an application could be supplied after the application is lodged. Still, there must be some temporal connection with the application. Evidence supplied around the time of the application may be sufficient. I doubt, for example, if the accompanying evidence appeared in an annexure which through inadvertence had not been uploaded or attached to the application but which was forwarded a day or so later, that anyone would argue that the evidence did not accompany the application. It might even extend beyond that. Where, for example, an applicant indicated in his application or a document submitted with it that he would forward the evidence within the week and he did so, it might be said that the evidence accompanied the application. But the words “accompanied by” are not so elastic as to stretch to evidence submitted, as here, five months after the application was lodged and two days after the decision was made. Language cannot be stretched so far that it snaps (cf. Wielgus v Removal Review Authority [1993] 1 NZLR 73 at 79). In contrast to the position in Berenguel the construction for which Mr Anand contended would compromise the purpose of the regulations.
29It is true that the tribunal “stands in the shoes” of the Minister. But for present purposes that is beside the point. The question is not whether the evidence was provided to the Minister; it is whether it accompanied the application. The federal magistrate correctly found that “application” in cl 487.216 meant the application for the visa.
30This construction is scarcely absurd, as Mr Karp contended. Nor is it unfair, particularly when the Minister’s delegate had drawn to Mr Anand’s attention the deficiencies in his application and given him a chance to rectify them. I have some sympathy for Mr Anand. But his predicament arose not from a misinterpretation of the regulations by the delegate, the tribunal or the federal magistrate, but in all likelihood from errors and omissions on the part of his migration agent.
31In these circumstances, despite the error in the interpretation of cl 487.216, the appeal should be dismissed. It is well accepted that the constitutional writs (and ancillary remedies like certiorari) are discretionary (Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 (“Aala”) at [5], [53]‑[54], [145]‑[150], [217]) and that a court can decline to grant relief if it would be futile to do so (Aala at [56]; SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [28]‑[29]). In this case it would be futile to set aside the tribunal’s decision and require the tribunal to reconsider the review application as Mr Anand requests because the result would inevitably be the same. For the reasons given above, it was not open to the tribunal to conclude that Mr Anand’s visa application was accompanied by evidence that he had applied for an AFP check.
In Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 (“Khan”) the Full Court of the Federal Court was dealing with cl 485.223 of Sch 2 to the Migration Regulations, which required that “[w]hen the application was made, it was accompanied by evidence that the applicant had applied for” a skills assessment, and “which was, in many respects, similar” to cl 487.216 of Sch 2 to the Migration Regulations considered by the Federal Court in Anand: Khan at [10] per Tracey J.
Of Anand, it was observed in Khan at [14] per Tracey J that:
Her Honour took a benign view of the word “accompanied”. The stretching of the concept may give rise to difficulties in determining how far a departure from the temporal requirement may be permitted. There would seem to be no need to stretch the concept, given that an application for a visa may be delayed until the applicant has, in his or her possession, evidence that the skills assessment has been applied for. Moreover, a visa application not accompanied by the evidence may be withdrawn and a fresh application made, once the evidence becomes available.
In Khan at [15]-[17] it was further observed by Tracey J (with whom Charlesworth J at [28] and Derrington J at [33] agreed) that:
15The clause establishes an objective temporal test. Whether or not there is some flexibility in the test, nothing decided in Anand permits the temporal requirement to import notions of fairness so as to avoid what might otherwise be an apparently harsh outcome for the visa applicant. The test does not turn upon concepts of blameworthiness or deservedness. A visa application is either accompanied by the necessary evidence or it is not.
16The test is objective. Clause 485.223 is one of a number of “time of application” criteria conditioning the grant of a skills visa. An obvious mischief addressed by the provision is to provide clarity to the visa applicant as to the person’s readiness to apply for the visa and the matters he or she needs to have done before he or she commences the visa application process.
17The provision aims to ensure that a person who applies for a visa has applied for his or her skill assessment and is therefore ready and willing to undergo the assessment at the earliest opportunity. If the provision was not enacted in that form, a visa applicant might use the visa application process, including processes associated with merits review by the Tribunal, to expand the time in which he or she acquires the skills necessary to fulfil the substantive visa criterion. In that way, the Regulations facilitate efficient decision-making and guard against delay by visa applicants who are not ready at the time of the visa application to undergo the necessary assessments.
Subsequent to Khan this Court in Bussa v Minister for Immigration & Anor [2019] FCCA 655 (“Bussa – FCCA”) had occasion to consider an applicant’s argument that “accompanied by” in cl 485.223 of Sch 2 to the Migration Regulations referred to everything provided to the Tribunal up to the time of the Tribunal decision. The argument was rejected, and at [14] per Judge Riethmuller in Bussa – FCCA this Court observed that:
The final argument was based upon an interpretation of the words “accompanied by” with respect to the provision. In two earlier single-Judge decisions, one by Katzmann J in Anand v Minister for Immigration & Citizenship [2013] FCA 1050; (2013) 215 FCR 562 and one by Burchardt J in Nguyen v Minister for Immigration & Anor [2016] FCCA 1523, their Honours both concluded that the term “accompanied by” did not require the document to be provided together with the application, and that some flexibility was contemplated. This approach was not approved in Khan’s Case, which concluded that the clause required an objective temporal test: see [14] of Khan’s Case. The period of time between lodging the visa application and providing a properly-made application for a skills assessment was far too long to come within the terms “accompanied by” even on the approach taken by Katzmann J and Burchardt J.
Bussa – FCCA was appealed to the Federal Court. The appeal was dismissed: Bussa v Minister for Immigration and Border Protection [2019] FCA 1994 (“Bussa – Federal Court”). In Bussa – Federal Court at [21] per Anastassiou J it was observed that evidence of a skills assessment applied for after the date of the application was not evidence accompanying the application, and at [24] per Anastassiou J that:
Despite the unfortunateness of the appellant’s situation, clause 485.223 essentially requires strict compliance. In Anand v Minister for Immigration and Citizenship [2013] FCA 1050; 215 FCR 562; 136 ALD 633 Katzmann J (at [28]) considered whether there might in appropriate circumstances be a degree of elasticity to what is meant by “accompanied” in clause 485.223. In Khan, Tracey J (at [14] and [15]) warned of the difficulties that could arise if the temporal requirement that the applicant be accompanied by the relevant evidence were to be “stretched”. It is unnecessary for me to express any view on the question of what, if any, latitude there might be in relation to the temporal requirement in clause 485.223, other than to say that there is nothing in the clause which confers a general discretion to excuse a failure to provide contemporaneously with the application evidence of a relevant application for a skills assessment.
In Bussa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] HCA 18; (2020) 94 ALJR 497; (2020) 377 ALR 228 (“Bussa – High Court”) at [14] per Nettle J (footnotes omitted) the High Court (constituted by a single judge), dismissing an application by Mr Bussa under s 75(v) of the Australian Constitution, observed that:
In any event, the application does not present an arguable basis for the relief sought. Judge Riethmuller and Anastassiou J were correct that the reasoning of the Full Court in Khan is determinative. In contradistinction to provisions of the kind considered in Berenguel, which direct attention to whether an applicant “has” prescribed skills at the time of application, cl 485.223 refers to whether the application itself “was accompanied by” prescribed evidence. As this Court indicated in Berenguel, the difference in terms reflects a difference in effect: that criteria of the former, but not the latter, kind may be satisfied by evidence provided to the Minister after the time of submitting the application and considered in accordance with ss 54, 55 and 56 of the Migration Act. And, as Tracey J reasoned in Khan, the form of cl 485.223 is evidently to ensure that an applicant for a visa has applied for a skills assessment and thus demonstrated a readiness and willingness to undergo the assessment at the earliest opportunity. Were it otherwise, as Tracey J recognised, an applicant could delay acquiring the skills necessary to fulfil the substantive visa criterion for so long as the visa application and any merits review processes were on foot. And, even then, the question of whether the plaintiff had acquired a positive skills assessment by the time of the judicial review proceedings would be irrelevant.
(Footnotes omitted)
The High Court in Bussa – High Court found that the “accompanied by” criteria in cl 485.223 of Sch 2 to the Migration Regulations, which for all intents and purposes – save one referred to at [51] below – is the same as the “accompanied by” criteria in reg 5.19(2)(b) of the Migration Regulations and is in contradistinction to the criteria considered by the High Court in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 264 ALR 417; (2010) 84 ALJR 251; (2010) 114 ALD 1 (“Berenguel”), and that whilst the criteria in Berenguel could be satisfied at a time after the visa application was made the “accompanied by” criteria “reflects a difference in effect” and that the “accompanied by” criteria presently under consideration is not of a “kind [that] may be satisfied by evidence provided … after the time of submitting the [visa] application”: Bussa – High Court at [14] per Nettle J. In Bussa – High Court the High Court expressly said that the approach in Bussa – FCCA and Bussa – Federal Court treating the reasoning in Khan as determinative was correct: Bussa – High Court at [14] per Nettle J.
In Bussa – FCCA at [14] per Judge Riethmuller this Court said that the conclusion in Anand (and also in NguyenvMinister for Immigration & Anor [2016] FCCA 1523; (2016) 310 FLR 339) that “accompanied by” did not require filing of the accompanying document with the visa application “was not approved” in Khan, while in Bussa – Federal Court at [24] per Anastassiou J the “accompanied by” criteria was said to be one of strict compliance. The Court notes that in Bussa – High Court at [11] per Nettle J the High Court observed that in Bussa – Federal Court the Federal Court “rejected all grounds of appeal, upheld … [this Court’s] reasoning as to the application of Khan, and held, … that cl 485.223 required “strict compliance””.
It is plain that the Full Court of the Federal Court in Khan took the view that Anand had stretched too far the meaning of “accompanied by” in cl 485.223 of Sch 2 to the Migration Regulations: at [14] per Tracey J, and that there was, rather, an objective temporal test as to whether the visa application was accompanied by the relevant evidence “at the time of the visa application”: at [15]-[17] (the quote is from [17]) per Tracey J.
Eugene Cho submitted that the Court ought to follow the approach adopted by the High Court in Berenguel in this matter when construing reg 5.19 of the Migration Regulations.
In Khan:
(a)ground 2 of the appeal alleged a failure to follow Berenguel: at [6(b)] per Tracey J;
(b)Tracey J at [26] rejected ground 2 for the reasons given by Charlesworth J;
(c)Derrington J at [33] agreed with the observations of Charlesworth J; and
(d)at [29]-[32] per Charlesworth J observed that:
29The appellant relied on the decision of the High Court in the matter of Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; [2010] HCA 8. In that case, the High Court construed a regulation setting out the criteria for the grant of a Subclass 885 visa. The relevant regulation — which was premised with the heading “Time of Application Criteria” — bore some similarity to the regulation in issue in the appellant’s case. At 421 [17] of the judgment the High Court said:
Division 885.2 sets out primary criteria. Under the heading “885.21 Criteria to be satisfied at time of application” there appears the following:
885.213 Either:
(a)the applicant’s nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupation, and the applicant has vocational English; or
(b) the applicant has competent English.
30 The High Court continued:
By way of relevant contrast, clauses 885.214 and 885.215 require the applicant to be accompanied by evidence of an Australian Federal Police check and arrangements that the applicant had made to undergo a medical examination. There is no such requirement in respect of proof of compliance with the vocational English or competent English criterion.
31The regulation at issue in the appellant’s case — that is, cl 485.223 — is not relevantly different from the two provisions that were contrasted by the High Court in that passage. The words “accompanied by”, the High Court found, at least implicitly, gave the necessary grammatical connection to the words “time of visa criterion”. It was that grammatical connection that was missing in relation to the regulation then under the Court’s consideration. It is for that reason that I consider the decision of the High Court in Berenguel affords no assistance to the appellant and, in fact, presents the appellant with some difficulty.
32Nor does the decision in Berenguel set forth any principle to the effect that considerations of fairness or absurdity are to govern the assessment of whether or not a temporal requirement exists between the making of an application and the provision of evidence that a skills assessment had been applied for. I would accordingly join in orders dismissing the appeal.
For the reasons given in Khan at [29]-[32] per Charlesworth J, Berenguel is distinguishable from reg 5.19(2) of the Migration Regulations under consideration in this matter. That conclusion is reinforced by the observations in Bussa – High Court approving Khan and pointing to the distinctions between cl 485.223 of Sch 2 to the Migration Regulations – which is relevantly in not dissimilar terms to reg 5.19(2) of the Migration Regulations – and the provisions of the Migration Regulations under consideration in Berenguel which were held not to be time of application criteria: Berenguel at [17]-[26] per French, Gummow and Crennan JJ.
The above review of the cases concerning “accompanied by” demonstrates that the most recent cases in the High Court, the Full Court of the Federal Court, the Federal Court (comprised of a single judge), and this Court, dealing with not dissimilar provisions in the Migration Regulations, have all taken the view that the phrase “accompanied by” in cl 485.223 of Sch 2 to the Migration Regulations means that the criteria is a time of application criteria.
Khan and the Bussa cases all dealt with cl 485.223 of Sch 2 to the Migration Regulations. It might be argued that that clause is distinguishable from reg 5.19 of the Migration Regulations because the clause has a heading indicating that it is a time of application criteria. However, it appears that the heading to the clause was not a decisive factor in Khan or the Bussa cases. Rather, it was the actual words used in the clause construed in context which led the various federal courts in those cases to the conclusion that the use of “accompanied by” meant that the relevant criteria was a time of application criteria. The reasoning in Khan and the Bussa cases is to be preferred, and therefore, for the purposes of interpreting reg 5.19(2)(b) of the Migration Regulations, that means that “accompanied by” is to be given the meaning prescribed in Khan and the Bussa cases, with the result that reg 5.19(2)(b) of the Migration Regulations is a time of application criteria.
In the above circumstances the Court has concluded that “accompanied by” in its ordinary meaning as it appears in reg 5.19(2)(b) of the Migration Regulations is a time of application criteria.
Returning then to reg 5.19(2)(aa) of the Migration Regulations and the requirement that the application “include” the “written certification”, what is meant by “include” in this context? Does it mean include with the application at the time of application, or can it be included later, that is, after the application has been, and at any time up to when the Tribunal decides?
The Oxford Dictionary Online: "include, v." OED Online. Oxford University Press, June 2021. Web. 30 March 2021, provides multiple definitions for “include”, the most relevant in the present matter being:
II. To have, put in, or incorporate as part of a whole.
The Macquarie Dictionary: "include" Macquarie Dictionary. Macquarie Dictionary Publishers, 2021. Web. 30 March 2021, includes the following definition of “include”:
1. to contain, embrace, or comprise, as a whole does parts or any part or element.
The Minister conceded that the word “include”, when used in reg 5.19(2)(aa) of the Migration Regulations, would be satisfied by an Employer Nomination Application:
(a)which had the Section 245AR Certificate attached to the Employer Nomination Application; or
(b)which:
(i)stated that the Section 245AR Certificate was lodged as a separate document with the Employer Nomination Application; and
(ii)in fact, was lodged with the Section 245AR Certificate.
In the context of the Minister’s argument, the concession does not take the practical matters as to the manner of the filing of the Section 245AR Certificate outside of the time of application criteria because the manner of the filing in each case involves the Section 245AR Certificate being included as part of the whole in the making of the application.
In contemplating the intention of the drafters it is relevant to consider what distinction, if any, was intended by the use of the expression “include” rather than “accompanied by”.
In context, a meaning consistent with the Section 245AR Certificate being included as a part of the whole, that is as part of the application as a whole at the time of application, is entirely consistent with the ordinary meaning of “include”. The Court also agrees with the Minister’s submission that “include” is narrower in scope than the words “accompanied by”. In that regard “include” has a greater quality of definitiveness and sense of inclusion than the phrase “accompanied by”. It follows that the construction to be given to reg 5.19(2)(aa) of the Migration Regulations ought not be broader than that given to reg 5.19(2)(b) of the Migration Regulations, and therefore it is appropriate, having regard to that narrower meaning of “include”, and to the rationale in Khan and the Bussa cases, to conclude that “include” in reg 5.19(2)(aa) of the Migration Regulations is a time of application criteria.
The Court has also examined the Explanatory Statement, Select Legislative Instrument No. 242, 2015 (“Explanatory Statement”) as it pertains to reg 5.19(2)(aa) of the Migration Regulations to which it was referred by the parties. The relevant section of the Explanatory Statement is as follows:
Item 15 – After paragraph 5.19(2)(a)
This item inserts new paragraph 5.19(2)(aa) after paragraph 5.19(2)(a) in Division 5.3 of Part 5 of the Regulations.
Regulation 5.19 provides for the process of applying to the Minister for approval of the nomination of a position in Australia, and the requirements that must be met for the Minister to approve such a nomination. Regulation 5.19 is relevant to nominations for the Temporary Residence Transition Stream and the Direct Entry Stream of the Subclass 186 visa and Subclass 187 visa.
New paragraph 5.19(2)(aa) provides that the application must include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Migration Act.
The effect of this amendment is that the Minister cannot approve the nomination unless, amongst other things, the person applying for approval of nomination has provided a written certification to the Minister regarding whether or not the person has engaged in conduct that constitutes a contravention of subsection 245AR(1) of the Migration Act, in relation to the nomination to which they are seeking approval. The events that are relevant to determining whether or not the conduct constitutes a contravention of subsection 245AR(1) of the Migration Act for the purposes of the certification are paragraphs (g) and (h) of the definition of sponsorship-related events in section 245AQ of the Migration Act.
The particular events relevant for the purposes of a certification under regulation 5.19 are different from a certification under regulation 2.72 and regulation 2.72A because a nomination under regulation 5.19 is not made under section 140GB of the Migration Act.
In effect, the person applying for nomination approval will be required to certify, in writing, whether or not they have asked for, or received, a benefit (within the meaning of section 245AQ of the Migration Act) from another person in return for applying for approval of the nomination currently being progressed, or not withdrawing the nomination currently being progressed. The requirement to provide a certification is applicable to nominations in relation to the Temporary Residence Transition stream and the Direct Entry stream of Subclasses 186 187.
The purpose of this amendment is to ensure that the person applying for nomination approval provides the certification before a nomination is approved. Depending on the information provided on the certification, further action may be taken to investigate the person making the nomination in relation to a possible breach of subsection 245AR(1) of the Migration Act. This requirement also makes a person making a nomination aware that the Migration Act prohibits a person from engaging in the conduct that contravenes subsection 245AR(1) of the Migration Act.
The phrase “[t]he purpose of this amendment is to ensure that the person applying for nomination approval provides the certification before a nomination is approved” in the last paragraph of the above quotation from the Explanatory Statement might, at first blush, seem to suggest that the provision of the Section 245AR Certificate is not a time of application criteria and that there is a degree of flexibility that indicates that the Section 245AR Certificate may be provided at a time prior to a Tribunal decision. This construction however places too much emphasis on the words “before a nomination is approved” and divorces them from not only the ordinary meaning of “include”, as set out at [54]-[55] above, in reg 5.19(2)(aa) of the Migration Regulations, but it also fails to appreciate the meaning to be given to reg 5.19(2)(aa) of the Migration Regulations when reading the relevant paragraphs of the Explanatory Statement as a whole.
When at paragraph 2 of the Explanatory Statement it is said that reg 5.19 of the Migration Regulations “provides the process of applying to the Minister for approval of the Nomination …, and the requirements that must be met for the Minister to approve such a nomination” it is evident that two separate matters are being dealt with, namely the:
(a)process of applying; and
(b)requirements to be met for approval.
These two matters fit neatly with:
(a)reg 5.19(2) of the Migration Regulations in relation to the process of applying; and
(b)reg 5.19(3) of the Migration Regulations in relation to the requirements to be met for approval.
From the outset therefore the structure of reg 5.19(2) of the Migration Regulations as set out in the Explanatory Statement is consistent with it relating to matters to be met in the process of applying for a visa, and not the fulfilment of subsequent requirements. This bifurcation between the process of applying and meeting the requirements is reinforced by the text of the last two paragraphs of the Explanatory Statement where it provides that the effect of reg 5.19(2) of the Migration Regulations is that “the person applying for nomination approval will be required to certify in writing, … in return for applying for approval of the nomination currently being progressed”, and for further investigative action to be taken to investigate any possible breach of s 245AR(1) of the Migration Act. In the overall context of the structure of reg 5.19(2), and in particular paragraph (aa), of the Migration Regulations, the phrase “provides the certification before a nomination is approved” is apt to describe, and does describe, part of a time of application criteria which requires the filing of the Section 245AR Certificate, and which, axiomatically, is therefore to be done before the relevant nomination is approved.
The fact that the filing of the Section 245AR Certificate is a part of the time of application criteria in reg 5.19(2)(aa) of the Migration Regulations is reinforced by the provisions of reg 5.19(3)(g) and (h) of the Migration Regulations relating to adverse information and the nominator having a satisfactory record of compliance with relevant laws, matters which logically and practically from an administrative viewpoint ought to follow the giving of the Section 245AR Certificate, as appears to be the intention of reg 5.19(2)(aa) and (3)(g) and (h) of the Migration Regulations when read together. Leaving the filing of the Section 245AR Certificate to an indeterminate time following the time of the making of the application gives rise to the type of administrative difficulties adverted to in Khan at [17] per Tracey J, as to which see [40] above. In practical terms the problem with reg 5.19(2)(aa) of the Migration Regulations not being a time of application criteria is that if an applicant can go through the entire application process up to the time immediately before a relevant administrative decision is to be made, and then provides an adverse Section 245AR Certificate, that leaves the visa application process open to manipulation, as well as resulting in a significant waste of public resources and time: Khan at [17] per Tracey J. As to the suggestion in the applicant’s submissions that an applicant could engage in conduct in contravention of s 245AR of the Migration Act after lodging the application and having certified that no such conduct had occurred, and still be granted the nomination if all other criteria were met - which would clearly be against the aims of the legislation - the Court observes that reg 5.19(3)(g) and (h) of the Migration Regulations are plainly intended to deal with any adverse conduct after the time of application.
Both parties referred to Aomatsu v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 139; (2005) 146 FCR 58; (2005) 219 ALR 611; (2005) 86 ALD 56 (“Aomatsu”) wherein the Full Court of the Federal Court considered whether an occupation nominated on an application had to be assessed by reference to skilled occupations specified in a Gazette Notice at the time of application or at the time of decision. Aomatsu involved a matter where an occupation had been removed from a list of “migration occupations in demand” for which points were awarded after the making of the application, and in regard to which the Minister had not therefore awarded points to an applicant. Aomatsu thus involved a quasi-legislative change of criteria after the application was made. The majority in Aomatsu held that whether an occupation was a migration occupation in demand was to be determined by reference to the Gazette Notice in force at the time of application: Aomatsu at [28] per Moore J and [53] per Gyles J. Aomatsu is plainly distinguishable from this matter on the facts as it involved a change in criteria after the time of application, but in any event, it does not assist Eugene Cho’s argument as the majority of the Full Court of the Federal Court determined there was a time of application requirement.
Eugene Cho also referred the Court to decisions of the Tribunal in different matters, but they were of no real assistance to the Court in the interpretation of reg 5.19(2)(aa) of the Migration Regulations.
For all of the above reasons, the Court is of the view that reg 5.19(2)(aa) of the Migration Regulations sets out time of application criteria. It follows that the Tribunal Decision that the requirements in reg 5.19(3) of the Migration Regulations, which included the requirement that the application be made in accordance with reg 5.19(2) of the Migration Regulations, had not been met: CB 1079, Tribunal Decision at [37]-[38], was open to it, and was correct. It follows that ground 1 is not made out and that the Tribunal Decision was not affected by jurisdictional error.
Written certification concerning conduct in contravening s 245AR(1) of the Migration Act
Strictly speaking, the secondary issue for determination, being whether the requirement in reg 5.19(2)(aa) of the Migration Regulations for written certification stating whether or not Eugene Cho had engaged in conduct in relation to the Employer Nomination that contravenes s 245AR(1) of the Migration Act had, or had not, been complied with by Eugene Cho, does not arise because the time of application criteria was not met by either:
(a)the purported Section 245AR Certificate provided to the Tribunal dated 26 November 2019: CB 1046 (“November 2019 Certificate”); or
(b)in a letter provided to the Tribunal dated 26 November 2019: CB 1064-1065 (November 2019 Letter”).
However, given the submissions made by the parties, it is appropriate to make a few observations.
In the November 2019 Certificate, both boxes were ticked regarding whether the conduct had, or had not, been engaged in. The boxes are ticked by Ms Cho in her capacity as a director of Eugene Cho: CB 1046.
The first box ticked relates to the text adjacent to the box which says:
I certify that I have engaged in conduct in relation to this nomination that constitutes a contravention of subsection 245AR(1) of the Migration Act 1958.
The second box ticked relates to the text adjacent to the box which says:
I certify that I have not engaged in conduct in relation to this nomination that constitutes a contravention of subsection 245AR(1) of the Migration Act 1958.
Plainly the ticking of both boxes does not meet the requirement in reg 5.19(2)(aa) of the Migration Regulations that the application must “include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act”. Ticking both boxes constitutes a wholly ambiguous statement that Eugene Cho has and has not engaged in conduct in contravention of s 245AR(1) of the Migration Act, and is not a “whether or not” statement as to the relevant conduct as required by reg 5.19(2)(aa) of the Migration Regulations. Thus, had the November 2019 Certificate been submitted in the same form at the time of application, it would not have met the requirements in reg 5.19(2)(aa) of the Migration Regulations.
In the two-page November 2019 Letter, Ms Cho writes at CB 1065 as follows:
I can declare that as a company we have always complied with the Migration Act 1958 – Section 245, despite not providing the actual signed form at the time of lodgment. We have never violated this section and will never do so.
In Lavan Legal v Kenyon [2017] FCCA 2529; (2017) 326 FLR 20 (“Lavan Legal”) at [84] and [86]-[87] per Judge Lucev the Court, with respect to the phrase “certify in writing”, observed that:
84. To “certify” relevantly means “to testify to or vouch for in writing”: Macquarie Dictionary (7th Edn) (Sydney: Macquarie Dictionary Publishers, 2017), page 255 (“Macquarie Dictionary”).
86. The meaning of the phrase “certify in writing” may however be affected by s.3 of the Interpretation Act 1984 (WA) (“Interpretation Act”) which provides the following definition of “writing”:
Writing and expressions referring to writing include printing, photography, photocopying, lithography, typewriting and any other modes of representing or reproducing words in visible form.
87. The definition of “writing” set out above is very broad, and is an inclusive definition, not an exclusive one. Relevantly, the word “writing” means:
That which is written; characters or matter written with a pen or the like
handwriting
any written or printed paper, document, or the like.
Macquarie Dictionary, page 1737.
Section 2B of the Interpretation Act defines “writing” as follows:
Includes any mode of representing or reproducing words, figures, drawings or symbols in a visible form
The Court considers that there is no reason to adopt any different approach to the meaning of the phrase “written certification” to that of “certify in writing” adopted in Lavan Legal and set out at [75] above. In the Court’s view absent the specification of a particular form on which a written certification is to be made, either by legislation (see, for example, reg 5.19(1) of the Migration Regulations) or by lawful declaration by the Minister or the Minister’s delegate, there is no reason why the “written certification” required by reg 5.19(2)(aa) of the Migration Regulations cannot be provided in writing in a letter such as the November 2019 Letter, filed at the time of making the application.
In any event, because the Court has already determined that reg 5.19(2)(aa) of the Migration Regulations is a time of application requirement neither the November 2019 Certificate nor the November 2019 Letter provide a basis for finding jurisdictional error in the Tribunal Decision.
Futility
Due to the Court’s determination that reg 5.19(2)(aa) of the Migration Regulations is a time of application requirement it is unnecessary to consider the futility argument raised by the Minister.
CONCLUSION AND ORDERS
The Court has concluded that:
(a)it is in the interests of the administration of justice to grant the Extension of Time Application; and
(b)there is no jurisdictional error in the Tribunal Decision.
It follows that there will be orders that:
(a)the time for the filing of the Judicial Review Application be extended to the time of filing of the Extension of Time Application, namely, 18 February 2020; and
(b)the Judicial Review Application filed 18 February 2020, as amended on 8 December 2020, be dismissed.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 31 August 2021
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