Guo v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1424
•19 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Guo v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1424
File number(s): SYG 2846 of 2020 Judgment of: JUDGE MCCABE Date of judgment: 19 December 2024 Catchwords: MIGRATION – review of a decision of the Administrative Appeals Tribunal (Tribunal) – temporary business entry visa – 457 visa program – whether the Tribunal misinterpreted s 140GB of the Migration Act 1958 (Act) – interpretation of the term ‘approved sponsor’ – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5, 140GB, 140E, 476
Migration Regulations 1994 (Cth) cl 457.223 of Sch 2, item 1223A of Sch 1
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth)
Cases cited: Singh v Minister for Immigration [2018] FCA 186 Division: Division 2 General Federal Law Number of paragraphs: 39 Date of hearing: 19 November 2024 Solicitor for the Applicant: Mr G Li (Advance Lawyers Group Pty Ltd) Counsel for the First Respondent: Mr N Swan Solicitor for the First Respondent: Minter Ellison Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2846 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RONGYOU GUO
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
19 DECEMBER 2024
THE COURT ORDERS THAT:
1.The application for judicial review is dismissed.
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 MCCABE:
The applicant in these proceedings, Mr Rongyou Guo, applied for a Temporary Business Entry (Class UC) (Subclass 457) visa (the visa) on 14 April 2017. Visas of this kind were issued as part of the so-called ‘457 visa program’. A delegate (the delegate) of the first respondent (the minister) rejected Mr Guo’s visa application because he did not have an approved work sponsor that was capable of making a valid nomination in accordance with the legislative rules governing the 457 visa program.
At the time of the rejection, Mr Guo could have started the visa application process anew once an approved work sponsor had been secured – either because the Administrative Appeals Tribunal (the Tribunal) on review of the sponsorship decision agreed the business should have been approved, or because the business made a fresh application for approval that was successful. As it happens, the business in question was the beneficiary of a favourable decision on review and thus became (albeit belatedly) an approved work sponsor. Unfortunately for Mr Guo, the minister no longer had a current nomination form on file because the Department of Immigration (the department) had returned the nomination form after the delegate’s decision in relation to the approved sponsor. The form had been returned on the basis that the file had been ‘administratively finalised’.
The obvious response for the applicant would be to relodge the visa application and the nomination now that the business has approval as a work sponsor. But the 457 visa program has since come to an end, and the applicant still wants a visa under that program. He cannot make a fresh application.
Mr Guo wants the Court to quash the Tribunal’s decision and require that it reconsider the visa application under the old program on the assumption there is (now) an approved work sponsor who has made (or can quickly make) a valid nomination. Mr Guo needs all that to be done quickly since the matter has taken so long to wend its way through the Court. The delay has been such that the approval given to the business is about to lapse.
The minister says the application is misconceived because it misunderstands the plain language of the statute. The minister adds the applicant does not have standing to effectively challenge what happened to the nomination; if the minister is right about that, the applicant cannot succeed even if he is right about the interpretation of the statute. For good measure, the minister says the Court should not exercise the discretion to grant a remedy in the event I am persuaded there is a material jurisdictional error.
The minister is right. I explain my reasons below.
Background to the application for judicial review
The 457 program
The key features of the 457 program (at least for present purposes) were substantially contained in s 140GB of the Migration Act 1958 (Cth) (Act) and Part 457 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). Under the 457 program, a businessperson could apply to become an approved work sponsor and nominate a non-citizen for a visa pursuant to s 140GB. The application for a visa by the prospective worker would be considered against the criteria in cl 457.223(4) of the Regulations. One of the requirements (found in cl 457.223(4)(a)) reads:
…
(a) each of the following applies:
(i)a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii)the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii)the approval of the nomination has not ceased as provided for in regulation 2.75; …
As Derrington J explained in Singh v Minister for Immigration [2018] FCA 186 (Singh) at [16], the legislation establishing the 457 program contemplated three separate applications that must be approved for a visa to be granted.[1] Even so, applicants – and to some extent the department in its departmental instructions – treated the separate applications as part of a comprehensive process in which applications:
(a)to become an approved work sponsor;
(b)to nominate an individual for a visa; and
(c)for the grant of the visa to the individual
would all be lodged with the department at the same time.
[1] His Honour explained (at [16]):
… The relevant legislative regime concerning 457 Visas establishes that three applications are required to be approved for such a visa to, ultimately, be granted. They are, in summary:
(a)A business sponsor applies to, and is approved, as being suitable to employ an overseas worker or workers. The application is considered against the requirements in the Migration Regulations 1994 (Cth) reg 2.59.
(b)The approved business sponsor submits a nomination application to establish that a position is suitable to be filled by an overseas worker. The nomination is considered against the requirements set out at reg 2.72 of the Regulations.
(c)The visa applicant submits a visa application to establish that he or she is suitable to fill the position. That application is assessed against extensive criteria set out in pt 457 sch 2 of the Regulations.
It was contemplated that each of these applications would be considered in turn as part of related but nonetheless separate decision-making processes with separate rights of review. The outcome of the second and third applications depended on the outcome of the first. If the first application was unsuccessful, the nomination of the individual went nowhere and the visa application by that individual would fail because there was no nomination by an approved work sponsor: see cl 457.223(4)(a).
The delegate’s decisions
The applicant in these proceedings applied for the visa in April 2017 at the same time as his prospective employer, Ms Lee (a) applied to be an approved work sponsor, who (b) nominated the applicant for a visa. Ms Lee operated a poultry farm and Mr Guo was seeking a position as a poultry farmer. A copy of Mr Guo’s application for a visa is reproduced in the court book (exhibit one) at pp 18ff. That application includes a ‘Nomination Transaction Reference Number’ that relates to the nomination application lodged by Ms Lee.
The delegate rejected Ms Lee’s application to become an approved work sponsor on 6 December 2017. Ms Lee promptly sought review of the delegate’s decision in the Tribunal. Her application for review was filed on 27 December 2017. I will have more to say about the outcome of that review below.
The rejection of Ms Lee’s application for approval immediately called into question the fate of the related application by Ms Lee to nominate Mr Guo for a visa. Mr Guo’s application for a visa also hung in the balance because it depended on his nomination by an approved work sponsor.
Departmental officers dealing with the visa application contacted Mr Guo on 6 December 2017 (i.e., before they were aware Ms Lee had lodged an application for review). They sent Mr Guo an invitation to comment on the fact Ms Lee was not at that time an approved work sponsor. Mr Guo’s migration agent responded by email on 3 January 2018 to the invitation for comment. The agent noted Ms Lee had lodged an application for review of the delegate’s decision to deny her approval as a work sponsor with the Tribunal (although she did not challenge the administrative decision to ‘finalise’ her nomination). The agent appeared to proceed on the basis that since the nomination had not been formally refused by the department following the delegate’s decision on her application for approval to be a sponsor, the nomination reform remained dormant but available. The agent said (court book at p 55):
In those circumstances, it would be suitable to await the outcome of Ms Lee’s AAT review application before Mr Guo’s visa application is to proceed.
The delegate was not minded to await the outcome of the Tribunal's review of Ms Lee’s application. The delegate rejected Mr Guo’s application for a visa on 27 February 2018. The reasons for that decision are reproduced in the court book at pp 62ff. The delegate acknowledged in the statement of reasons that Ms Lee was separately seeking review of the decision which denied her application to become an approved work sponsor. Notwithstanding that, the delegate found there was no valid approved business nomination on foot at the time of the decision. In those circumstances, Mr Guo was unable to satisfy the requirements of cl 457.223(4)(a) at that time. The visa application was refused on that basis.
I note the 457 visa program was closed to new applicants following the introduction of the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth). That meant it would be impossible for a new application for approval of a nomination in support of a visa to be made under that program.
The Tribunal’s decisions on review
Mr Guo filed an application for review in the Tribunal on 20 March 2018. There was a lengthy delay in dealing with the application. In the meantime, on 17 December 2019, the Tribunal set aside the delegate’s decision to refuse Ms Lee's approval. The Tribunal approved her as a standard business sponsor for a period of 5 years. (The decision and reasons for that decision are annexed to exhibit two.)
On 2 October 2020, Mr Guo received an invitation to attend a hearing on 6 November 2020. Mr Guo’s solicitor, Mr Li, wrote to the Tribunal on 9 October 2020 to make submissions in support of a stay of the Tribunal’s review until such time as the implications of Ms Lee’s successful application for approval could be established. The request for a postponement of the hearing in Mr Guo’s case was declined on 15 October 2020. Mr Li thereafter informed the Tribunal that he and Mr Guo would not attend the hearing.
On 20 October 2020, the Tribunal again wrote to Mr Guo through his solicitor. The letter included an invitation to provide information that addressed the absence of a valid nomination in support of Mr Guo's visa application: court book at p 115ff. Mr Li responded with a set of revised submissions that built on an earlier set of submissions dated 9 October 2020 (court book at pp 121ff). In the latter submissions, Mr Li pointed out (amongst other things):
(a)while the approval of the business as an approved work sponsor had originally been refused, Ms Lee had since been successful in obtaining that approval on review; and
(b)the separate but associated visa nomination by Ms Lee had not been actively refused but had merely been ‘administratively finalised’ in light of the delegate’s decision (since overturned by the Tribunal) to refuse the approval of Ms Lee as a work sponsor. Because the department dealt with (or refused to deal with) the visa nomination without making a formal decision to refuse it, there were no review rights in the Tribunal, and Ms Lee had not separately applied for a review of that decision.
The Tribunal proceeded to make a decision refusing the application for a visa. The decision was dated 9 November 2020.
In the reasons for decision, the Tribunal acknowledged Mr Li’s argument that the department should not have ‘administratively finalised’ the visa nomination before the decision refusing Ms Lee's application for approval had been reviewed by the Tribunal. It also acknowledged Mr Li had sought a stay of the Tribunal’s review of Mr Guo’s application until the other review was finalised in the expectation that it would be possible to re-enliven the existing nomination that had been ‘administratively finalised’ but not rejected. The applicant’s hope that the existing nomination could be re-enlivened was seen as an alternative to lodging a fresh nomination – an option that was no longer available given the 457 program was being closed.
The Tribunal concluded (at [12]) it was under an obligation to “deal with cases expeditiously and efficiently based on the information before it, as is required by the guidelines of good practice.” Since there was no valid nomination currently on foot and the Tribunal did not have the power to compel the minister to re-enliven or revive the ‘administratively finalised’ nomination, the applicant was unable to satisfy the requirements of cl 457.223(4)(a): at [14].
The application for judicial review of the Tribunal’s decision in relation to the visa
Mr Guo filed an application for judicial review of the Tribunal’s decision pursuant to s 476 of the Act on 14 December 2020. The matter came on for a hearing before me on 19 November 2024, approximately a month before Ms Lee’s existing approval is due to expire. That lengthy delay in docketing and listing the matter is unfortunate, regardless of the eventual outcome of the case.
The applicant identified a single ground of appeal – namely that the minister and the Tribunal misinterpreted s 140GB of the Act. The text of s 140GB(1) at 6 December 2017 (the date on which the sponsorship application was refused) provided:
140GB Minister to approve nominations
(1) An approved sponsor may nominate:
(a)an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:
(i) the applicant or proposed applicant’s proposed occupation; or
(ii)the program to be undertaken by the applicant or proposed applicant; or
(iii) the activity to be carried out by the applicant or proposed applicant; or
(b) a proposed occupation, program or activity.
I note the expression ‘approved sponsor’ was itself defined in s 5 of the Act to mean:
(a) a person:
(i)who has been approved by the Minister under section 140E in relation to a class prescribed by the regulations for the purpose of subsection 140E(2); and
(ii)whose approval has not been cancelled under section 140M, or otherwise ceased to have effect under section 140G, in relation to that class; or
(b) a person (other than a Minister) who is a party to a work agreement.
In written submissions and at the hearing before me, Mr Li enlarged on his earlier submissions to the Tribunal to the effect that s 140GB and the definition of ‘approved sponsor’ should be interpreted in light of the fact applications for (a) approval as a work sponsor, and (b) nomination for a visa were regularly lodged on behalf of a business in conjunction with a visa application. While he accepted the nomination and visa applications logically awaited the outcome of the sponsorship application, Mr Li argued s 140GB(1) (and the definition of ‘approved sponsor’ in s 5) did not create any barrier to the lodgement of the second and third applications at the same time in anticipation of the sponsorship application being approved – and that once lodged, the second and third applications in that sequence did not lapse and could not be determined until the sponsorship application had been finally determined.
He argued that meant the other two applications (for nomination, and for a visa) remained available for consideration until any review of the sponsorship approval was finalised. If the final review of the sponsorship approval was decided in the businessperson’s favour, the nomination application would (assuming it met the requirements) be accepted immediately thereafter. Once that occurred, the visa application could be quickly and easily decided in the applicant’s favour.
Mr Li argued this interpretation of ‘approved sponsor’ was necessary to avoid the absurd outcomes that would flow if only those who were already approved as sponsors could nominate a visa applicant. He said the absurdity was underlined by the construction of other regulations and procedures. For example, Mr Li referred to item 1223A(3)(da) of Schedule 1 to the Regulations which governs what constitutes a valid visa application. That provision says, relevantly:
In the case of an applicant who seeks to satisfy the primary criteria for the grant of a Subclass 457 (Temporary Work (Skilled)) visa on the basis that the applicant meets the requirements of subclause 457.223(4) of Schedule 2:
(i) a person must have nominated an occupation in relation to the applicant; and
(ii) either of the following applies:
(A)the nomination has been approved under section 140GB of the Act and the approval of the nomination has not ceased under regulation 2.75;
(B)a decision in respect of the nomination has not been made under section 140GB of the Act; … [emphasis added]
Mr Li says the bolded section of the provision clearly contemplates lodgement of a valid application for a visa alongside an as-yet unapproved nomination. A lodgement of the visa application in those circumstances meant it would be processed (and presumably approved, other things being equal) once the nomination was accepted at the end of the decision-making process in relation to the sponsorship – a process that included Tribunal review where that was sought. To suggest the nomination would be peremptorily cast aside if the delegate rejected the sponsorship application would cause the process contemplated in the Regulations to break down.
Mr Li also referred to cl 457.223(4)(a)(ii) which spoke of a nomination being made by a person who was a standard business sponsor at the time the nomination was approved. He said that provision suggested the legislation intended the nomination would remain dormant on the file but potentially become available for consideration if the decision-making process in relation to the sponsorship concluded in the sponsor’s favour.
In short, Mr Li argued that when one considers the interpretation of the expression ‘approved sponsor’ in s 140GB(1) in the wider context of the legislative scheme, it was apparent it should be read broadly to include entities who were in the process of seeking approval. It necessarily followed the associated applications remained on file and ready to be engaged until the question of sponsorship approval was finally determined – which meant the nomination remained dormant but available until the Tribunal’s review (if there was one) was complete. The Tribunal’s failure to recognise that interpretation and proceed accordingly amounted to a material jurisdictional error in its decision.
The minister argues there was no misinterpretation of s 140GB(1), but adds that should I disagree:
(a)the remedy the applicant seeks amounts to an impermissible collateral attack on the minister’s disposal of Ms Lee’s nomination application. The applicant was not a party to that application and Ms Lee did not seek review on her own behalf. In those circumstances, the minister says the applicant does not have standing to bring a challenge; and
(b)there is no meaningful remedy at this late stage given the imminent expiry of Ms Lee’s approval. Since the delegate would be unlikely to make a decision in relation to the nomination and the Tribunal would be unlikely to complete their reconsideration of a remitted application before 19 December 2024 when Ms Lee’s current approval expires, the provision of any remedy would be an exercise in futility.
The interpretation point lies at the heart of the applicant’s single ground of appeal. Mr Swan, counsel for the minister, noted the definition of ‘approved sponsor’ in s 5 uses the past tense: it refers to a person who ‘has been approved’ (emphasis added). That language clearly suggests a person could only make a valid nomination if they had already received approval as a sponsor pursuant to s 140E of the Act. It does not on its terms preclude the minister accepting lodgement of the nomination and visa applications at the same time as the sponsorship applications: that may be done as a matter of administrative convenience. But it does not change the clear requirement in s 140GB(1) that the nomination is of no effect until the sponsor who lodged it is approved as such.
I do not understand the applicant to disagree with that proposition: Mr Li accepts the nomination does not fall to be considered until the sponsor making the nomination has been approved. The applicant’s argument appears to be that accepting the filing of the nomination at the same time as the sponsorship application and the application for a visa creates a requirement that the three applications be dealt with in a particular sequence. Mr Li says that sequence includes, by implication, a requirement that an applicant for sponsorship who fails to secure approval before the delegate must be allowed to pursue their review rights before the nomination can be considered by the delegate or ‘administratively finalised’.
Mr Swan did not dispute that the minister’s department routinely allowed these omnibus applications to be filed. He nonetheless argued the adoption of an administratively convenient process should not be misunderstood as a concession that the three decision-making processes contemplated by the legislation (and described by Derrington J in Singh) were somehow merged or became interlocked.
I accept the effect of item 1223A(3)(da) of Schedule 1 and cl 457.223(4)(a)(ii) in Schedule 2 to the Regulations creates an expectation that the minister’s delegate will not address the nomination until a decision has been made in relation to sponsorship, but there is no basis for interpreting the plain text of those provisions to import a further requirement that no action be taken after the delegate’s decision until the review process is exhausted. While the delegate operates on the same decision-making continuum as the Tribunal on review, it is generally the case that primary administrative decisions (in this case, by the delegate to refuse the sponsorship application) take effect according to their terms notwithstanding an application to the Tribunal.[2] If the delegate’s decision with respect to sponsorship is subsequently varied or set aside on review by the Tribunal, so be it: in the meantime, there is an operative decision in place in relation to sponsorship and nothing in the legislation suggests the department or the Tribunal is unable to have regard to it.
[2] The Tribunal has the power to order a stay of some reviewable decisions while the Tribunal review proceeds, but that is not the case here.
To be clear: there is nothing in s 140GB(1) or other provisions cited to me that suggests the minister or the Tribunal on review is required to permit an unsuccessful applicant for sponsorship to exhaust its review rights before the minister can deal with or dispose of the nomination. There is also no basis for arguing the legislation requires the Tribunal to stay its consideration of the subsequent visa application until the sponsorship review is completed and (assuming the sponsorship is approved) the nomination is subsequently approved.
The applicant argues this approach to s 140GB(1) would be absurd. I accept the interpretation contended for by the minister might have unfortunate consequences in the circumstances of this case where the visa program in question has come to end and the applicant may be unable to rely on the nomination. That unusual outcome aside, the departmental response was entirely sensible: in the absence of a positive decision on sponsorship, there was no sense in holding on to the nomination. The act of ‘administrative finalisation’ that followed was an administrative decision that brought finality to the process. If the person purporting to make the nomination was subsequently approved as a sponsor on review, the correct course was for that individual to file an up-to-date nomination application. The fact the 457 program ended with unfortunate consequences for the applicant does not make the minister's interpretation of the legislation absurd.
I am satisfied the applicant’s interpretation point must fail. The Tribunal did not misunderstand the law or its obligation. There was no nomination approved at the time it made its decision on the visa. It applied the law correctly and made its decision. While it could have waited for an updated nomination form to be re-lodged before proceeding, it did not do so. There is no jurisdictional error evident in its exercise of the discretion to proceed or in the decision it made in relation to the visa.
Conclusion
It is unnecessary for me to address the minister’s alternative arguments about standing and collateral attacks or futility given the conclusion I have reached on the interpretation point. There is no jurisdictional error evident in the Tribunal’s decision. The application for judicial review must be dismissed.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 19 December 2024
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