Jiang v Minister for Immigration and Citizenship
[2025] FedCFamC2G 908
•11 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jiang v Minister for Immigration and Citizenship [2025] FedCFamC2G 908
File number: SYG 920 of 2021 Judgment of: JUDGE SYMONS Date of judgment: 11 June 2025 Catchwords: MIGRATION – judicial review of a decision of the Administrative Appeals Tribunal – where applicant applied for a Temporary Skill Shortage visa on the basis of a proposed nomination by her employer – where the employer withdrew the nomination before it was approved – where the Tribunal found it had no jurisdiction to review the adverse delegate’s decision – where the applicant’s ground of judicial review challenged the validity of reg 2.75(2)(a) of the Migration Regulations 1994 – where the factual premise for the ground was not established – finding that Tribunal correctly determined that the decision of the delegate was not a Part 5-reviewable decision within the meaning of s 338(2)(d)(i) of the Migration Act 1958 – application dismissed with costs Legislation: Migration Act 1958 (Cth), ss 140GB, 338, 504
Migration Regulations 1994 (Cth), reg 2.75; Sch 2, cl 482.212
Division: Division 2 General Federal Law Number of paragraphs: 37 Date of last submissions: 10 June 2025 Date of hearing: 10 June 2025 Place: Melbourne Solicitor for the applicant: The applicant represented herself with the assistance of an interpreter in the Mandarin and English languages Counsel for the first respondent: Mr B Kaplan Solicitor for the first respondent: Mills Oakley Solicitor for the second respondent: Submitting appearance, save as to costs ORDERS
SYG 920 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: XINYI JIANG
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
10 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Citizenship”.
2.The name of the second respondent be amended to “Administrative Review Tribunal”
3.The application for judicial review filed on 25 May 2021 and amended on 26 August 2024 be dismissed.
4.The applicant pay the first respondent’s costs fixed in the amount of $6,100.
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 SYMONS:
INTRODUCTION
By way of application filed on 25 May 2021, and amended 26 August 2024, Ms Jiang (the applicant) seeks review of a decision made by the second respondent (Tribunal) on 20 April 2021 that it did not have jurisdiction to review a decision of a delegate of the first respondent (Minister) not to grant Ms Jiang a Temporary Skill Shortage (Short Term) (subclass 482) visa (visa). The Tribunal entered a submitting appearance save as to costs and did not participate in the proceedings.
BACKGROUND
The following background is taken largely from written submissions filed by the Minister on 9 August 2024 and reflects non-controversial matters that can be objectively ascertained from copies of documents contained in the court book filed by the Minister’s lawyers on 5 August 2021, pursuant to orders of the Court made on 24 June 2021 (CB).
The applicant is a citizen of China who arrived in Australia on 2 April 2013 on a Student visa. Since her first arrival, the applicant has held two further Student visas, a Temporary Graduate visa and associated bridging visas.
On 27 May 2020, the applicant applied for the visa on the basis of a proposed nomination as a Marketing Specialist with Caruso’s Natural Health Ltd (the sponsor) (CB 1-19).
It was a requirement for the grant of the visa that the applicant satisfy cl 482.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). Relevantly, cl 482.212 required that an applicant be the subject of an approved nomination by an approved sponsor at the time the nomination was approved.
On 21 November 2020, the sponsor withdrew the nomination.
On the same day, the Department wrote to the applicant and invited her to comment on information that the sponsor did not have an approved nomination. The applicant was invited to provide a response within 28 days but no response was forthcoming (CB 49-51).
On 1 February 2021, a delegate of the Minister refused to grant the visa on the basis that the sponsor did not have an approved nomination and therefore could not satisfy cl 482.212 of Schedule 2 to the Regulations (CB 56). The notification letter that accompanied the delegate’s decision stated that the sponsor was entitled to apply for merits review of the decision to refuse the applicant’s visa (CB 53).
On 19 February 2021, the applicant applied to the Tribunal for review of the decision and provided a copy of the delegate’s notification letter and decision record (CB 59).
On 11 March 2021, the Tribunal invited the applicant to comment on the validity of the application for review (CB 78). In its invitation, the Tribunal noted that the application appeared to be invalid because at the time of the delegate’s decision, the applicant was not identified in an approved nomination, and there were not any pending applications before the Tribunal concerning a nomination or sponsorship decision (CB 78).
On 25 March 2021, the applicant provided a response stating that she believed her application was valid as the delegate’s refusal letter indicated her review rights (CB 80). The applicant conceded that she did not have an approved nomination and was no longer employed by the sponsor (CB 80).
On 20 April 2021, the Tribunal found that it did not have jurisdiction in the matter and produced a brief written statement of decision and reasons (R) (CB 130-131).
DECISION OF THE TRIBUNAL
The Tribunal commenced by recording the circumstances in which it had jurisdiction to review a decision under the Migration Act 1958 (Cth) (Act). The Tribunal noted that a decision to refuse a Temporary Skill Shortage visa was reviewable if the applicant made the visa application while in the migration zone and either the applicant was the subject of an approved nomination at the time the application for review of the visa refusal was made or an application for review of a decision not to approve the nomination had been made but at the time the application for review of the visa refusal was made, review of the nomination decision was pending (R [2]).
The Tribunal found that the decision was not reviewable in the circumstances of this case because the applicant was [not] nominated as required by a criterion for the grant of the visa (R [3]).
The Tribunal noted that it had invited the applicant to comment on the validity of the application for review and in her response, the applicant had referred to the decision notification having outlined review rights. The Tribunal found that the information contained in the notification letter was incorrect but confirmed that this did not alter the position with respect to jurisdiction and did not render the notification defective (R [4]-[5]).
JUDICIAL REVIEW
The Minister initially sought orders that the application be summarily dismissed, and orders were made to facilitate a hearing of this application and for the filing of an amended application (if any) by the applicant and submissions by both parties.
On 9 August 2024 the Minister filed submissions in support of the summary dismissal application.
On 26 August 2024, the applicant – who at this stage was legally represented by a law firm and by counsel – filed an amended application and submissions in opposition to the summary dismissal application.
On 27 August 2024, in circumstances where the Minister informed the Court that he no longer pressed the summary dismissal application, orders were made listing the matter for final hearing on 22 October 2024. Orders were also made that required the applicant to file and serve by 24 September 2024 any amended application for judicial review, written submissions and any further evidence and for the Minister to file and serve by 8 October 2024 his written submissions and any further evidence upon which he relied.
On 3 September 2024, I made orders by consent vacating the final hearing date to accommodate the availability of the applicant’s counsel. The hearing was re-listed to 10 February 2025 and the procedural timetable extended to reflect the new hearing date. The procedural timetable was varied on two further occasions with the consent of the parties.
On 28 January 2025, the applicant’s lawyer filed a notice of withdrawal of lawyer and the applicant approached the Court seeking an adjournment of the final hearing to allow her time to obtain new legal representation. The Minister did not oppose the application, and the matter was relisted to 10 June 2025.
On 28 May 2025, the applicant made an informal approach to the Minister seeking a further adjournment and I listed the matter for mention on 2 June 2025 to hear and determine this application. I refused the adjournment for reasons given on the date and the matter remained listed before me on 10 June 2025.
THE FINAL HEARING
At the request of the parties, who were based in Sydney, the hearing took place using Microsoft Teams.
The applicant represented herself and was assisted by an interpreter in the English and Mandarin languages. The Minister was represented by Mr Kaplan of counsel.
The applicant acknowledged that the Minister had sent to her copies of her amended application and written submissions filed on 26 August 2024, as well as copies of his written submissions filed on 3 and 6 June 2025.
The applicant told the Court that she relied upon her amended application and written submissions of 26 August 2024.
The amended application contains the following ground of review:
1.The Tribunal erred in finding that it did not have jurisdiction to review the applicant’s application to it.
Particulars
a. Jurisdiction in the applicant’s matter was governed by s. 338(2)(d)(i) of the Migration Act.
b. If that provision is not to operate to confer jurisdiction on the Tribunal, Migration Regulation 2.75(2)(a) must apply, and must therefore be a valid exercise of the power to make regulations in s. 504 of the Migration Act.
c. Regulation 2.75(2)(a) is not supported by either s. 140GB or s. 338(2)(d)(i), or any other provision of the Migration Act, and is thus invalid.
d. That being so, the Tribunal had and has jurisdiction in the applicant’s matter.
The ground, self-evidently, involves a discrete, technical point that seeks to impugn the validity of regulation 2.75(2)(a) of the Regulations. Given the applicant’s self-represented status, I gave her the opportunity to tell the Court whether there was anything she wished to say about the decision of the Tribunal and why she considered it be wrong. The applicant did not wish to say anything and maintained her reliance on the documents that had been filed on her behalf.
I invited the Minister’s counsel, Mr Kaplan, to address the pleaded ground in a way that would enable the applicant to respond, should she choose to do so.
Mr Kaplan informed the Court that the position with respect to the pleaded ground had been recently simplified, after the Minister’s lawyers discovered that contrary to what had earlier been understood to be the case, the nomination application submitted by the sponsor in respect of the applicant, had never been approved. In support of this asserted fact, the Minister sought, and was granted leave, to tender a document on Department of Home Affairs letterhead dated 27 May 2020 which contained an acknowledgement of receipt of a nomination application for the applicant made by the sponsor. The letter confirmed that “this application has been received for processing”.[1]
[1] The letter was admitted as Exhibit R1.
Mr Kaplan explained that the Minister’s lawyers had initially interpreted a screenshot of the Department’s records (reproduced at CB 74) as establishing that on 27 May 2020, the Minister had approved the nomination of the applicant by the sponsor, for her proposed occupation pursuant to s 140GB(2) of the Act. However, the letter referred to above clarified the position. The Department had only acknowledged receipt of the nomination application on this date. Furthermore, there was no evidence that the Minister had been able to identify (and certainly nothing in the court book) to suggest that the nomination application had ever been approved before 21 November 2020, being the date that the sponsor withdrew the nomination application.
The applicant’s pleaded ground operates on the factual premise that at the time of the delegate’s decision, the applicant had been “identified in an approved nomination that ha[d] not ceased under the regulations”, within the meaning of s 338(2)(d)(i) of the Act (cf applicant’s submissions at [4], [6], [11]-[13]). The applicant argues that reg 2.75(2)(a), which stipulates that an approval of a nomination will cease on the day that Immigration receives notification in writing of the withdrawal of the nomination, is invalid, with the result that the applicant’s circumstances were comprehended by s 338(2)(d)(i) and the Tribunal had before it a Part 5-reviewable decision. While it is not necessary for the purpose of this application to explore at lengths the argument as to validity, it can be said in broad terms to involve the contention that reg 2.75(2)(a) was not authorised by either s 140GB or s 504 (these provisions said to be the obvious source of power).
RESOLUTION
I am persuaded, having regard to the evidence that is before the Court, including as supplemented by Exhibit R1, that the Tribunal was correct to find that it did not have jurisdiction to review the decision of the delegate made on 1 February 2021.
I am satisfied that the evidence bears out that at the time of the delegate’s decision, the nomination application made by the sponsor in respect of the applicant had not only been withdrawn but had never been approved by the Department. The consequence of this finding means that the decision of the delegate was not one of a kind comprehended by s 338(2)(d)(i) of the Act and was not therefore a Part 5-reviewable decision so as to attract the Tribunal’s merits review jurisdiction. It has not been suggested by either party that the decision of the delegate was amenable to review on an application of any of ss 338(2)(d)(ii)-(iv) and there is no basis in the evidence to support such a finding.
The decision of the Tribunal is consistent with it coming to its conclusion on jurisdiction on the same factual foundation. As noted earlier, the Tribunal, after referring to s 338 of the Act, found that the decision was not reviewable because the applicant was [not] nominated as required for the grant of the visa.
The issue of the validity of reg 2.75(2)(a) of the Regulations does not arise.
Instead, the proper disposition of the application is that it be dismissed and there be an order that the applicant pay the Minister’s costs in a fixed amount.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 11 June 2025
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