Keay v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 224

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Keay v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 224

File numbers:

PEG 29 of 2020

Judgment of:

JUDGE LUCEV

Date of judgment:

1 April 2022

Catchwords:

 MIGRATION – Judicial review – decision of the Administrative Appeals Tribunal – Temporary Skill Shortage (class GK) (subclass 482) visa – where related judicial review application successful – jurisdictional error – writs issued

Legislation:

Migration Act 1958 (Cth) Div 5, Pt 5, s 476

Migration Regulations 1994 (Cth) Sch 2, cl 482.212

Cases cited:

Kaur v Minister for Immigration and Border Protection [2016] FCCA 1730

Keay v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 223

Minister for Home Affairs v Mohammed [2019] FCAFC 49; (2019) 269 FCR 70

Mora v Minister for Immigration and Border Protection [2018] FCA 1819

Division:

Division 2 General Federal Law

Number of paragraphs:

10

Date of last submission/s:

4 May 2021

Date of hearing:

4 May 2021

Place:

Perth

Counsel for the First, Second and Third Applicants:

Mr M. Crowley

Solicitor for the First, Second and Third Applicants:

William Gerard Legal Pty Ltd

Counsel for the First Respondent:

Mr G. Johnson

Solicitor for the First Respondent:

Sparke Helmore

For the Second Respondent:

Submitting appearance, save as to costs

ORDERS

PEG 29 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CHRISTOPHER LEE KEAY

First Applicant

REBBECCA GEORGINA KEAY

Second Applicant

CHRISTOPHER MALCOLM SIMON KEAY

Third 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:	1 APRIL 2022

THE COURT ORDERS THAT:

1.A writ of certiorari issue quashing the decision of the second respondent made on 30 December 2019.

2.A writ of mandamus issue requiring the second respondent to re-hear the application made by the applicants on 16 April 2019 for Temporary Skill Shortage (class GK) (subclass 482) visas and determine it according to law.

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 LUCEV

INTRODUCTION

1. On 24 January 2020 the applicants in this matter filed an application for judicial review (“Judicial Review Application”) pursuant to s 476 of the Migration Act 1958 (Cth) in respect of a decision of the Administrative Appeals Tribunal made on 30 December 2019 (“Tribunal Decision” and “Tribunal” respectively”). The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the First Respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse to grant the applicants Temporary Skill Shortage (class GK) (subclass 482) visas (“the visa”).

   JUDICIAL REVIEW APPLICATION

   Background

2. The relevant background to the Judicial Review Application is as follows:

   (a)the First Applicant (“Mr Keay”) is the partner of the Second Applicant (“Ms Keay”). The Third Applicant (“Master Keay”) is the minor child of Mr and Ms Keay;

   (b)the Nominators, Christopher Keay and Diane Keay, are partners of the organisation C Keay & D Keay, a business trading as C & D Keay;

   (c)on 16 April 2019 Mr Keay applied for the visa as a Bricklayer. At the time of his application he was employed as a full-time Bricklayer Supervisor at C & D Keay and had obtained an AQF Certificate III in Bricklaying: CB 1-58;

   (d)on 3 May 2019 the Delegate invited Mr Keay to comment on information that his prospective employer, C & D Keay, did not have an approved nomination: CB 58-61;

   (e)on 3 June 2019 the Delegate refused the visa application, on the basis that Mr Keay did not satisfy the requirements of cl 482.212(1) of Sch 2 of the Migration Regulations 1994 (Cth) (“Migration Regulations”), as C & D Keay did not have an approved nomination: CB 62-73;

   (f)on 17 June 2019 Mr Keay applied to the Tribunal for review of the Delegate’s Decision to refuse the Employer Nomination: CB 74-76;

   (g)on 19 November 2019 the Tribunal invited the applicants to attend the Tribunal Hearing: CB 82;

   (h)on 9 December 2019 representatives of the applicants (including a migration agent) attended the Tribunal Hearing: CB 89-94;

   (i)on 24 December 2019 the Tribunal refused C & D Keay’s employer nomination application for Mr Keay; and

   (j)on 30 December 2019 the Tribunal Decision affirmed the Delegate’s Decision: CB 100-103.

   Tribunal Decision

3. The Tribunal Decision was to affirm the Delegate’s Decision, solely on the basis that the applicants did not satisfy cl 482.212(1) of Sch 2 of the Migration Regulations, which requires an approved nomination to be in place: CB 102 at [16]-[17].

   Ground 3

4. Ground 3 of the Judicial Review Application is as follows:

   It follows that if the Employer Sponsor is granted remedies by the Court quashing the Tribunal's decision and directing the Tribunal to determine their Tribunal application in relation to the associated nomination application that the Applicants' in this matter also be granted the final orders sought in this Court application.

   Applicants’ submissions

5. The applicants submitted that if the Tribunal’s employer nomination decision is affected by jurisdictional error, so is the visa decision: Mora v Minister for Immigration and Border Protection [2018] FCA 1819 at [55] per Collier J.

   Minister’s submission

6. The Minister’s submissions accepted that should the Court determine that the Tribunal decision in PEG28/2020 is affected by jurisdictional error and orders that that matter be remitted to the Tribunal, then it is appropriate that the Court should, in this matter, set aside the Tribunal Decision the subject of challenge in this proceeding, and remit the matter to the Tribunal for reconsideration, citing, as did the applicants, Mora at [55] per Collier J.

   Consideration of ground 3

7. It is not in dispute that the success or otherwise of this Judicial Review Application is contingent upon the Court’s judgment in PEG28/2020: Mora at [55]-[57] per Collier J; Kaur v Minister for Immigration and Border Protection [2016] FCCA 1730 at [48] and [72] per Judge Smith (consistent with Minister for Home Affairs v Mohammed [2019] FCAFC 49; (2019) 269 FCR 70 at [93] per Middleton, Bromberg and Kerr JJ).

8. In PEG28/2020 the Court:

   (a)concluded that the Tribunal’s employer nomination decision was materially affected by jurisdictional error; and

   (b)issued a writ of certiorari quashing the Tribunal decision in that matter, and a writ of mandamus requiring the Tribunal to rehear the matter and determine it according to law,

   see Keay v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 223 at [71]-[72] per Judge Lucev.

9. It follows, therefore, that in this matter the Court will issue a writ of certiorari quashing the Tribunal Decision, and a writ of mandamus requiring the Tribunal to rehear the matter and determine it according to law.

10. The Court will hear the parties as to costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.

Associate:

Dated:       1 April 2022