James v Minister for Immigration - [2020] FCCA 1888

FEDERAL CIRCUIT COURT OF AUSTRALIA

JAMES & ORS v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1888

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for Temporary Work (Skilled) (Subclass 457) visa – whether Tribunal asked itself the wrong question or made findings of law that were not open to it – decision of Tribunal affirmed – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss.140GB, 476

Migration Regulations 1994 (Cth) regs.2.72, 2.75

Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth)

First Applicant:

JASON SPENCER JAMES

Second Applicant:

KELLY ANN AYRE

Third Applicant:

VINNY JAMES

Fourth Applicant:

SONNY JAMES

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 20 of 2020

Judgment of:

Judge Street

Hearing date:

10 July 2020

Date of Last Submission:

10 July 2020

Delivered at:

Sydney

Delivered on:

10 July 2020

REPRESENTATION

Solicitors for the Applicant:

Mr D Estrin, Estrin Saul Lawyers

Counsel for the Respondents:

Ms C Taggart

Solicitors for the Respondents:

Sparke Helmore

ORDERS

Pursuant to div 11.2 of the Federal Circuit Court Rules 2001 (Cth), the first applicant is appointed as the litigation guardian of the third and fourth applicants and the Court otherwise dispenses with the requirements of the Rules.
The application is dismissed.
The first and second applicants pay the first respondent’s costs fixed in the amount of $3,737.00.

DATE OF ORDER: 10 July 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 20 of 2020

JASON SPENCER JAMES

First Applicant

KELLY ANN AYRE

Second Applicant

VINNY JAMES

Third Applicant

SONNY JAMES

Fourth Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 6 January 2020 affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the first applicant a Temporary Business Entry (Class UC) visa.
The first applicant is the partner of the second applicant and the third to fourth applicants are children.
The first applicant is a citizen of England and applied for the relevant visa, including the other applicants as family members, on 11 March 2016. The application for the visa was a Temporary Work (Skilled) (subclass 457) visa.
On 30 March 2017, the Delegate found that the first applicant failed to meet the criteria for the grant of the visa. Relevantly, the Delegate found that there was a failure to meet the Public Interest Criteria (PIC) PIC4020 requirements of Sch 2 of the Migration Regulations 1994 (Cth) (“the Regulations”).
The applicants applied for review on 11 April 2017. The applicants attended a hearing before the Tribunal on 24 October 2019 to give evidence and present arguments.
On 5 December 2019, the Tribunal wrote to the representative for the applicants raising an issue in respect of the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulation 2018 (Cth) (“the Amending Regulation”) being the amended regulations that repealed and replaced the criteria for the nominations relating to proposed Subclass 457 visas. Those provisions repealed the Subclass 457 visas and the same were closed to new applications.
The approved nomination in the present case, under reg 2.75(2)(b) of the Regulations, ceased on 21 April 2017. There was no further evidence that the applicant was the subject of a new nomination for a Subclass 457 visa lodged prior to 18 March 2018.
Reference was made in the letter of 5 December 2019 to the requirements of sub-cl 457.223(4)(a) requiring that there be an approved nomination of an occupation relating to the applicant by the standard business sponsor that has not ceased. The letter explained that, if the applicants were not the subject of an approved nomination and a new application or approval of a nomination cannot be made, the decision under review may need to be affirmed.
Mr Estrin, the solicitor for the applicants, properly and candidly acknowledged in his letter dated 16 December 2019 to the Tribunal that the nomination by the employer in respect of the visa applied for had expired on 21 April 2017. However, Mr Estrin submitted that there was now in place an approval of the applicant as a proposed applicant for a Temporary Skill Shortage (Subclass 482) visa and referred to the requirements of reg 2.72(b) of the Regulations relevantly as follows:
(i)a holder of a Subclass 457 (Temporary Work (Skilled)) visa;
(ii)a holder of a Subclass 482 (Temporary Skill Shortage) visa;
(iii)an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa
Mr Estrin submitted that the primary applicant falls within the scope of para (iii) as he is a proposed applicant for a Subclass 482 visa.
It is apparent that the applicant’s employer is the same employer that was the subject of the Subclass 457 visa.
Mr Estrin submitted that, in light of the approval of the nomination notice for the Subclass 482 visa, dated 14 October 2019, the applicant met the criteria, and it was argued that the first applicant is a “proposed applicant” for a Subclass 482 visa, making out the requirements, it was submitted, of sub-cl 457.22 in the circumstance of the present case. It was submitted that, at the time of the Tribunal’s decision, there was an approved nomination under s 140GB of the Act and reg 2.72 of the Regulations and that, accordingly, the applicant, it was submitted, met the criteria.
The Tribunal, in its reasons, identified the background to the visa application and referred to the requirements of cl 457.224.
The Tribunal found that the applicant did meet the Public Interest Criterion 4020. In that regard, the Tribunal found that the criteria should be waived.
The Tribunal also found that the applicant met the criteria under PIC4020(2B).
The Tribunal referred to the submissions advanced that the applicants meet the requirements of sub-cl 457.223(4).
The Tribunal correctly identified that, at the time the application was lodged, Class UC contained Subclass 457 and was set out in Pt 457 of Sch 2 to the Regulations. The Tribunal correctly identified that one of the criteria to be satisfied under cl 457.223 required that the visa applicant satisfy one of the alternative “streams” for the visa and one of those streams was contained in sub-cl 457.223(4) and referred to the specific claims advanced in the present case against sub-cl 457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor.
The Tribunal expressly referred to the employer sponsor’s application for approval of a nomination dated 14 October 2014 for the occupation of ANZSCO 334113 and noted that the nomination approval notice was for a Subclass 482 visa.
The Tribunal correctly identified that on 18 March 2018, the Amending Regulations commenced and, amongst other things, repealed and replaced the criteria for the nomination relating to proposed Subclass 457 visas and that the Subclass 457 was repealed and closed to new applications.
The Tribunal correctly identified that there was an approved nomination in respect of the applicant’s employee made on 21 April 2016 and that, by operation of reg 2.75(2)(b) of the Regulations, that approval ceased on 21 April 2017. The Tribunal expressly referred to the proper and candid acknowledgement by the legal representative that that nomination had expired and that this was before the commencement of the Amending Regulation on 18 March 2018. The Tribunal found that there was nothing to indicate that a new nomination for a subclass 457 visa was lodged prior to 18 March 2018.
The Tribunal referred to the correspondence sent to the applicant and the applicant’s submissions advanced in relation to the notification. The Tribunal found that, for the applicant to meet the requirements of cl 457.223(4)(a), there must be an approved nomination in an occupation relating to the applicant by a standard business sponsor that has not ceased. The Tribunal correctly identified that it was no longer possible to make a nomination in respect of the Subclass 457 visa following the commencement of the Amending Regulation on 18 March 2018. It was in those circumstances that the Tribunal found that the applicant does not satisfy the requirements of sub-cl 457.223(4)(aa).
The Tribunal referred to the submissions advanced and referred to sub-cl 6704(15) of the transitional provisions in respect of the Amending Regulations, which provided that para 2.75(2)(b) of the Regulations does not apply to nominations made before 18 March 2018 if, relevantly:
i)before the commencement day, the person identified in the nomination applies for the Subclass 457 visa on the basis of the nomination; and
ii)within 12 months after the nomination is approved, the person applies to the Tribunal for a review of the decision to refuse to grant the visa.
The Tribunal correctly found that those provisions apply to the nominations which have not yet ceased by virtue of the operation of reg 2.75(2)(b) of the Regulations as at 18 March 2018. The Tribunal correctly found that the nomination in the present case had ceased well before that date.
The Tribunal acknowledged the approved nomination under Subclass 482 and found that it is quite clear from the wording of reg 2.72(1)(b)(iii) of the Regulations that an application to nominate a proposed occupation can be in relation to a proposed applicant for a Subclass 482 visa. The Tribunal was not persuaded that the Tribunal could find that the applicant met the criteria under sub-cl 457.223(4) and affirmed the decision under review.

The ground

The ground in the application are as follows:
1. The decision of the Second Respondent was affected by jurisdictional error in that it asked itself the wrong question or made findings in law that were not open to it.
Particulars
For subclass 457 visa applications made before 18 March 2018, subclause 457.223(4)(a) in Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations) requires there to be an approved nomination under section 140GB of the Migration Act 1958 (Cth) (Act) which had not ceased under regulation 2.75.
On 14 October 2019, a delegate of the First Respondent assessed nomination EGONSHZLBH and approved it on the basis of section 140GB of the Act and regulation 2.72 of the Regulations.
At the time of the Second Respondent’s decision, this nomination had not yet ceased under regulation 2.75 and the First Applicant met subclause 457.223(4)(a).
The Second Respondent, in deciding that it was “no longer possible to make a nomination in respect of a Subclass 457 visa applicant following the commencement of the Amending Regulations on 18 March 2018” asked itself the wrong question and misconstrued the requirements of subclause 457.223(4).
The question was not, as at paragraph 48 of the Second Respondent’s decision, “is it possible to make a nomination in respect of a subclass 457 visa applicant […]?
Rather, the question was “at the time of the decision, is there approved nomination under section 140GB of the Act which had not ceased under Regulation 2.75?”
Mr Estrin in his oral submissions has drawn the Court’s attention again to whether the applicant could satisfy the criteria under cl 457.223(4) and in particular the wording in reg 2.72 in paragraph (3), and submitted that there was an approved nomination under s 140GB of the Act and that that nomination had not ceased under reg 2.75 and that, accordingly, the first applicant met the criteria under cl 457.223(4).
Mr Estrin submitted that the Tribunal had erred by asking itself the wrong question in relation to the requirements of cl 457.223(4) by focussing upon it not being possible to make a nomination in respect of the 457 visa following the commencement of the amending regulation on 18 March 2018.
Mr Estrin submitted that the correct question was whether, at the time a decision in assessing sub-cl 457.223(4)(a), there was an approved nomination under s 140GB of the Act which has ceased under reg 2.75 of the Regulations.
Mr Estrin submitted that the Tribunal had asked itself the wrong question. The difficulty with Mr Estrin’s argument is that the construction of s 140GB of the Act ignores the language in paragraph (a) of that section that expressly refers to:
an applicant, or proposed applicant, for a visa of a prescribed kind, (however described) in relation to:
Sad as it may be, the applicant’s visa application was for a 457 visa. The reference in paragraph 3 of the regulations does not overcome the want of an approved nomination in respect of a Subclass 457 visa and that the applicants can no longer meet that criteria.
It is unfortunate but, notwithstanding the skilful arguments by Mr Estrin, there is no basis upon which this Court can find that the relevant criteria was met in the circumstances where the approved nomination had ceased.
The Tribunal was correct in holding that the applicants failed to meet the relevant criteria.
Having made these remarks, however, it is apparent that this is a circumstance that was beyond the control of these applicants and whilst the Court has no function in relation to merits, the Court does, on rare occasion, make observations that the case is one which is appropriate for consideration of ministerial intervention. The Court agrees with Mr Estrin that this is a case worthy of such consideration, however that is as far as this Court may go.
The first respondent has asked for costs in the sum of $5,000.00 which is below the full amount in respect of the scale. However, these are proceedings in respect of which it would have been possible for the first respondent to move for a show cause hearing in relation to which the costs would then have only been in the amount of $3,737.00. These are proceedings in respect of which the outcome was beyond the control of the applicants.
Whilst the Court accepts that the ordinary rule is that the successful party should have their costs, this is a case which was capable of being disposed of as a show cause hearing and, taking into account the particular circumstances of this case, the Court accepts that it is an appropriate matter in which to exercise its discretion and to allow costs only in the amount that would have been awarded had it been dealt with as a show cause hearing.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 10 July 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Date: 28 July 2020