Kim v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1168
•25 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kim v Minister for Immigration and Citizenship [2025] FedCFamC2G 1168
File number(s): MLG 2055 of 2019 Judgment of: JUDGE JOHNS Date of judgment: 25 July 2025 Catchwords: MIGRATION –cancellation of Temporary Work (Skilled) (Subclass 457) visa – whether Tribunal applied the wrong legal test – whether Tribunal failed to consider relevant material– whether Tribunal failed to afford procedural fairness – weight is a matter for the Tribunal – no jurisdictional error – application dismissed Legislation: Fair Work Act (Cth) 2009, s 718(2)
Migration Act 1958 (Cth), ss 116(1)(b), 140(1), 476,
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 7.01
Migration Regulations 1994 (Cth), 8107(3)(a), 8107(3)(b) of Schedule 8
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Bhasker v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 620
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152
McKenzie v McKenzie [1970] 3 All ER 1034
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
Nathanson v Minister for Home Affairs (2022) 276 CLR 80
Nepal v Minister for Immigration and Border Protection (2015), 327 ALR 89
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 85 Date of hearing: 11 July 2025 Place: Melbourne Applicants: Appeared in person with the assistance of a “McKenzie” friend William Albon Solicitor for the First Respondent: Rogan O’Shannessy, Mills Oakley Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2055 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR NAM HYOUNG KIM
First Applicant
MRS JEONG SOON KIM
Second Applicant
MS GYU RI KIM (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE JOHNS
DATE OF ORDER:
25 JULY 2025
THE COURT ORDERS THAT:
1.The application for judicial review filed by the Applicants on 28 June 2019 be 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 JOHNS
Before this Court is an application for judicial review of a decision of the then Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Border Protection (as the Minister was then called) (Delegate). The Delegate had cancelled Mr Nam Hyoung Kim’s Temporary Work (Skilled) (Subclass 457) visa (TW Visa). Because the visa applications of the other applicants in this proceeding were dependant on Mr Kim’s visa status, their visas were consequently cancelled.
This application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (Act). The application was filed within the 35-day time period prescribed under the Act.
The matter was:
(a)allocated to the Court as presently constituted on 28 May 2025,
(b)listed for hearing on 28 May 2025, and
(c)heard in-person on 11 July 2025.
To obtain relief from this Court, the applicants must show that the Tribunal fell into jurisdictional error. For the reasons that follow, this Court has determined that no jurisdictional error arises from the Tribunal’s decision.
The application for judicial review is accordingly dismissed.
BACKGROUND
The background to this matter is derived from the Court Book and submissions of the parties and, unless otherwise indicated, does not appear to be in dispute.
Issue in dispute
The primary issue is whether the Tribunal committed jurisdictional error in affirming the decision of the Delegate cancelling Mr Kim’s TW Visa.
The application for a visa
Mr Nam Hyoung Kim (Primary Applicant) is the primary applicant in this proceeding. The other applicants are his wife, Mrs Jeong Soon Kim, and (when the application was made) their three then minor daughters (Secondary Applicants).[1] All applicants are citizens of South Korea.[2] By the time the matter came before the Court one of the daughters:
a) the Third Applicant, was 23 years of age,
b) the Fourth Applicant, had discontinued her application (having returned to South Korea to study), and
c) the Fifth Applicant, was 19 years of age.
[1] Court Book (CB) 126.
[2] CB 270.
The Applicant and his family first arrived in Australia in 2014 as visitors holding tourist visas.[3] They travelled to Australia to visit the Applicant’s brother, who is an Australian citizen residing in Melbourne with his family.[4]
[3] CB 188 at [23].
[4] n 2.
While in Australia, the Applicant was introduced by his brother’s friend Mr William Park, the owner of Hyosung Worldwide Express Pty Ltd (Hyosung), a logistics business importing and distributing products from Korea within Australia. Mr Park offered to sponsor the Applicant for employment as a Marketing Manager within his company.[5]
[5] Ibid.
On 11 August 2015, the Applicant was granted a TW Visa The TW Visa was valid until 11 August 2019.[6] The visa was granted on the basis of an approved nomination by Hyosung as the standard business sponsor.[7] The Secondary Applicants were granted dependant visas as members of his family unit.[8]
[6] CB 315 at [42].
[7] Ibid.
[8] CB 300 at [10].
The Applicant’s visa was subject to condition 8107(3)(b) in Schedule 8 to the Migration Regulations 1994 (Regulations), which provides (emphasis added):
…
(3)If the visas, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):
(b)if the holder ceases employment – the period during which the holder ceases employment must not exceed 90 consecutive days
…
The Applicant commenced employment with Hyosung after the grant of the visa. However, he alleges that his role as Marketing Manager was not honoured and that he instead worked as a van driver.[9] The Applicant further alleges that:
(a)Mr Park required him to pay $50,000 to act as his sponsor, with an undertaking to refund the amount if the visa lapsed, which was not honoured,
(b)he was paid $862 per week but was required to return $400 in cash to Mr Park each week,
(c)he was underpaid compared to what he was entitled to under the award, and not paid superannuation,
(d)Mr Park demanded an additional $20,000 to support his permanent residency application, which the Applicant paid, and
(e)he was subjected to exploitation and intolerable working conditions.[10]
[9] CB 70.
[10] Ibid.
On 13 September 2017, the Applicant ceased employment with Hyosung due to these working conditions.[11] After ceasing employment, the Applicant began driving for Uber to support his family.[12] He continued to refund part of his pay to Mr Park in order to maintain the appearance of employment.[13]
[11] CB 71.
[12] CB 152.
[13] CB 184.
The Court observes that the experience recounted by the Primary Applicant is an all too familiar and unacceptable experience of foreign workers who are exploited by local employers praying on their workers’ ambitions to obtain a visa that will allow them to stay in Australia. The Fair Work Ombudsman (FWO) provides a range of information for foreign workers. However, foreign workers often fear:
(a)raising matters with or complaining to their employer in the belief that their employer will report them to government officials and their visa will be cancelled. Often, unscrupulous employers will make threats to do so, or
(b)reporting matters to the FWO in the belief that their visa will be cancelled.
The Primary Applicant was not so fearful. The Primary Applicant made a report to the FWO about the cash for visa sponsorship arrangement, the cash-back arrangement and underpayments. He reported that the employment with Hyosung ended in September 2017.
On 23 May 2018 the FWO made a referral to the Department of Home Affairs. The information was referred under s 718(2) of the Fair Work Act (Cth) 2009, a section that authorises the FWO to disclose information if the FWO reasonably believes that the disclosure is likely to assist in the administration or enforcement of a law of the Commonwealth. The FWO advised the Department that it did not require the Primary Applicant to “remain in place until the investigation is finalised”. Consequently, the Department became aware that the Primary Applicant had ceased working with his sponsor eight months earlier. It is somewhat peculiar that, in seeking to enforce unfair work practices visited upon him, the Primary Applicant came to the attention of the Department (ultimately leading to him having his visa cancelled). It is little wonder that foreign workers are discouraged from making complaints.
On 23 July 2018, the Department issued the Applicant with a Notice of Intention to Consider Cancelation (NOICC) of his TW Visa pursuant to s 116(1)(b) of the Act.[14] The NOICC stated that the Applicant had breached condition 8107(3)(b) by ceasing employment with his sponsor for more than 90 consecutive days without obtaining a new approved nomination. That notice invited the Applicant to respond within five working days.[15]
[14] CB 221.
[15] Ibid.
On 29 July 2018, the Applicant responded to that email:
(a)admitting that he had ceased employment with Hyosung for a period of more than 90 days,
(b)expressing regret for his actions, stating that there was no malicious intent to breach his visa conditions,
(c)requesting that if his visa were to be cancelled, that adequate notice be given to the Applicant to organise his family’s departure from Australia,
(d)alleging that Mr Park had extracted over $96,000 from him,
(e)indicating that he wished to remain in Australia to pursue civil proceedings against Mr Park and to assist authorities with any prosecution of Mr Park for breaches of migration law, and
(f)requesting the opportunity to attend an in-person meeting with the Department to discuss these matters further.[16]
[16] CB 230 – 231.
On 30 July 2018 and 7 August 2018, the Department informed the Applicant that it would not schedule any in-person meetings and requested that any further submissions be provided in writing by close of business on 8 August 2018.[17] No further response was received from the Applicant.
[17] CB 13 – 18.
Decision by Delegate
On 9 August 2018, the Delegate cancelled the Primary Applicant’s TW Visa pursuant to s 116(1)(b) of the Act. The visas of the Secondary Applicants (which were dependant on the Primary Applicant’s visa) were also cancelled consequently under s 140(1) of the Act. The reasons for the Delegate’s decision were that:
(a)the Primary Applicant had breached condition 8107(3)(b) of his visa by ceasing employment with his approved sponsor for a period of more than 90 days,
(b)the Primary Applicant’s employment with Hyosung ceased on or around 10 or 13 September 2017,
(c)the purpose of the Primary Applicant’s visa, which was to work for his approved sponsor in the nominated occupation, had ceased,
(d)the Primary Applicant had not obtained an approved nomination from another employer within 90 days of ceasing employment,
(e)although the Primary Applicant had not breached any other visa conditions, the breach of condition 8107(3)(b) was significant,
(f)the cancellation of the visa would result in hardship to the Primary Applicant and his family, including disruption to his daughters’ education, but this hardship was not considered to outweigh the breach,
(g)the Primary Applicant’s children could continue their education outside Australia and would not be separated from their parents as the family would depart together,
(h)the Primary Applicant and his family could apply for a Bridging Visa E to remain lawfully in Australia to finalise their affairs,
(i)the Primary Applicant’s allegations against his former employer, including exploitation and underpayment, were noted but no supporting evidence had been provided by the Primary Applicant, and
(j)the Primary Applicant’s desire to remain in Australia to pursue civil claims against his employer and to assist authorities investigating migration fraud did not outweigh the breach of visa conditions.
After considering all relevant factors, the delegate was satisfied that the ground for cancellation existed and exercised the discretion to cancel the Primary Applicant’s visa.
Application to the Tribunal
On 18 August 2018, the Primary Applicant applied to the Tribunal for a review of the Delegate’s decision. The application nominated Mr William Albon as his representative in the review proceedings.
On 20 August 2018, the Primary Applicant filed written submissions in which he:
(a)admitted that he had breached condition 8107(3)(b) by ceasing employment for more than 90 consecutive days but denied any malicious intent,
(b)alleged that his sponsor required him to pay $50,000 in return for sponsoring his visa application and forced him to repay $400 in cash from his weekly wage,
(c)stated that he worked as a van driver instead of a manager, was underpaid under the relevant award, and was not paid superannuation,
(d)submitted that he left employment on13 September 2017 because of exploitative work conditions,
(e)explained that he prioritised his family’s wellbeing and pursuing legal claims against Mr Park instead of notifying the Department of his cessation of employment,
(f)requested that he be allowed to remain in Australia to pursue civil proceedings against Mr Park and to assist authorities in investigating Mr Park’s migration fraud, and
(g)raised humanitarian concerns regarding his three daughters, including their integration into the Australian society and the significant detriment they would face were they to be removed.
In support of his application, the Primary Applicant also attached:
(a)a letter from Mr Albon to Mr Park demanding repayment of $50,000, and
(b)letters of support from his daughter’s teachers outlining potential educational and emotional harm they would suffer if they were to be returned to South Korea.
On 20 February 2019, the Tribunal invited the Primary Applicant to a hearing scheduled for 11 April 2019 and requested that he return a completed form titled “Response to hearing invitation – MR Division” within 7 days.
On 27 March 2019, the Primary Applicant returned the completed hearing response form.
On 4 April 2019, the Primary Applicant filed further written submissions, in which he:
(a)noted that he did not want to alter any of the prior submissions that he had filed with the Tribunal,
(b)explained that his wife could not return to South Korea to grieve after her father’s death due to the uncertain visa status which caused her emotional hardship,
(c)stated that household income had reduced, with his wife ceasing her previous business to start an export business, and him working as an Uber driver, and
(d)attached updated letters of support from his daughter’s teachers.
On 11 April 2019, the Primary Applicant attended the scheduled hearing in person with the assistance of a Korean interpreter. Also in attendance were the Primary Applicant’s wife and Mr William Albon.
On 24 April 2019, the Primary Applicant filed further written submissions in which he:
(a)thanked the Tribunal for the hearing,
(b)admitted that he failed to notify the Department of the cessation of his employment and worked without permission,
(c)described his conduct as naïve, wrong, and deeply embarrassing, and
(d)clarified that he was not seeking reinstatement of his TW Visa but rather an opportunity to be tested for another visa type.
On 3 June 2019, the Tribunal affirmed the Delegate’s decision to cancel the Primary Applicant’s TW Visa. By reason of that cancellation, the visas of the Secondary Applicants were also cancelled.
At the time that the Tribunal made its decision, the Primary Applicant’s TW Visa was, in any case, due to expire 2 months later (i.e. on 11 August 2019).
TRIBUNAL’S DECISON
At paragraphs 17 to 30 of the Minister’s outline of submissions filed 8 July 2025, solicitors for the Minister summarised the Tribunal’s reasons as contained in the Decision Record. The Court as presently constituted has carefully read the Tribunal’s reasons and accepts the Minister’s summary as comprehensive, fair and properly referenced. The Cout adopts it for the purposes of this judgment (citations omitted):
17.The Tribunal found that it only had jurisdiction with respect to the primary applicant and had no jurisdiction with respect to the other applicants.
18.The Tribunal found that the applicant had not complied with condition 8107(3)(b) and that a ground for cancellation of the visa existed pursuant to section 116(1)(b) of the Act.
19.The Tribunal recognised that it had a discretion as to whether to cancel the visa. It noted that there were no matters specified in the Act or Regulations that it was required to consider, but that it would have regard to the relevant circumstance, including but not limited to matters identified in the Department’s Procedures and Advice Manual (PAM3) ‘General Visa Cancellation Powers.
20.The Tribunal found that the purpose of a subclass 457 visa was to work for a standard business sponsor in an approved position. The Tribunal found that the applicant's approved employment had ceased and that he had not secured another employer, sponsor or nomination.
21.The Tribunal found that there was no ongoing investigation into the sponsor and no evidence that the Department intended to take action against the sponsor or required the applicant as a witness. The Tribunal found that even if the applicant did take action against the sponsor, it did not give this significant weight because there was no requirement for the applicant to remain in Australia to pursue those proceedings. Further, the visa in issue was due to expire on 11 August 2019 and any Court proceedings would not be resolved by that date. Moreover, the Tribunal found that pursuing legal action is not a purpose for which a subclass 457 visa is granted.
22.Tribunal found that the first and second applicants’ claims as to the potential turnover of the export business newly established by the first and second applicants to be speculative at best. In any event, the Tribunal found that the first and second applicants could conduct this business from Korea. The Tribunal placed little weight on the first applicant's Australian business interests.
23.The Tribunal accepted that the applicants may suffer some financial detriment if they had to return to Korea but found that there was no impediment to the first and second applicants seeking employment in Korea or continuing their current business interests there. The Tribunal found that the financial hardship was not a significant factor in favour of not cancelling the visa.
24.The Tribunal accepted that the third, fourth and fifth applicants had been in Australia for some time and were attending school here and had regard to the letters from their schools. The Tribunal gave this factor significant weight in favour of not cancelling the visas. However, the Tribunal also noted that the daughters had previously moved from Korea to the Philippines and from the Philippines to Australia, and that they would be returning to Korea with their parents. The Tribunal found that the disruption to the third, fourth and fifth applicants would be mitigated to some degree by the aforementioned other factors.
25.The Tribunal found that the fact that the applicant was not fulfilling the purpose of the subclass 457 visa was a strong factor in favour of its cancellation.
26.The Tribunal found that on the applicant's own evidence he had worked as an Uber driver after ceasing employment with his sponsor, and that this was a breach of the condition set out in paragraph 8107(3)(a) of Schedule 8 to the Regulations. The Tribunal found that the applicant did not seek alternate employment with an employer who could nominate him within the 90-day period, and did not inform the Department of his circumstances or check what his obligations were. The Tribunal found that this weighed in favour of cancelling the visa.
27.The Tribunal found that the applicant's evidence that he paid money to the sponsor in return for the sponsorship and nomination, and his agreement with the sponsor to return half of his salary each week, suggested an acknowledgment by the applicant that he was paying the sponsor to obtain permanent residence and that the nominated position may not have been genuine. The Tribunal found that the applicant entered into a commercial agreement with the sponsor to obtain temporary, and ultimately permanent, residence and that this agreement then broke down before the applicant was able to obtain permanent residence. Therefore, the Tribunal did not accept the applicant's claims to have been an innocent victim but did accept that he had been exploited by the sponsor and felt it necessary to leave his employment.
28.With respect to international obligations, the Tribunal found that a return to Korea would not breach the Convention on the Rights of the Child. The Tribunal found that the Korea-Australia Free Trade Agreement (KAFTA) did not provide a blanket right of entry or residence nor confer upon the applicant any right to remain in Australia. The Tribunal gave the KAFTA little weight.
29.The Tribunal noted that a subclass 457 visa is a temporary visa and that it necessarily will come to an end, and require the holder to depart Australia, which should be anticipated by the visa holder. The Tribunal found it significant that the applicants' visas would have expired on 11 August 2019 in any event and also found that the applicant could apply for a subclass 188 visa offshore if he wished to do so.
30.The Tribunal concluded that the visa should be cancelled.
PROCEEDINGS IN THIS COURT
On 28 June 2019, the Primary Applicant filed an application (Originating Application) with this Court under s 476 of the Act, seeking judicial review of the Tribunal’s decision.
By his Originating Application, the Primary Applicant seeks orders that the Tribunal’s decision be quashed. At the hearing, the Court informed the Primary Applicant that, in order to properly invoke the jurisdiction of this Court, the relief sought would need to be amended to include a writ of mandamus remitting the matter back to the Tribunal for reconsideration according to law. The Applicant made an oral application to amend the Originating Application. The Minister did not oppose the application. Consequently, the Court granted the Primary Applicant leave to amend the application to include the seeking of a writ of mandamus.[18]
[18] Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 7.01.
It is not necessary to list the four grounds in the Originating Application because they were replaced by amended grounds on 1 July 2025.
Case management
On 18 July 2019, the First Respondent (Minister) filed its response and opposed the making of the orders sought by the Primary Applicant. The Minister submitted that the Originating Application failed to articulate or establish any jurisdictional error on the part of the Tribunal.
On 3 December 2021, the Minister filed a bundle of relevant documents (Court Book).
On 17 February 2025, the Minister filed an amended response.
On 14 May 2025, a Registrar of this Court issued orders (Registrar’s Orders) programming the matter for hearing at the Melbourne Registry of this Court. The Registrar’s Order directed:
(a)the Primary Applicant to file any amended application, written submissions, and further evidence 28 days before the hearing, and
(b)Respondent to file any amended response, written submissions and further evidence in response 14 days before the hearing.
On 28 May 2025, the matter was allocated to the Court as presently constituted. On the same day, the matter was listed for hearing on 11 July 2025.
On 25 June 2025, outside the timeframe prescribed by the Registrar’s Orders, the Primary Applicant emailed the Court his written submissions along with various documents containing character references and photos of the applicants.
On 26 June 2025, the Court advised the Primary Applicant to file his submissions through the Court’s eLodgement system and to file any evidence in the form of an affidavit, directing that this be done by close of business that day. On the same day, by consent of the parties, the Court issued orders extending the time for the filing of the Primary Applicant’s submissions and directing the Minister to file its written submissions by 4 July 2025.
On 1 July 2025, outside of the time prescribed by the above orders, the Primary Applicant filed his written submissions and an Affidavit annexing the documents referred to above. At the hearing became apparent that it was intended that part of the submissions (referred to as “the ten points”) be treated as amended grounds of review. The Minister did not object to the filing of these documents, and the Court granted leave. The Court also extended the time for the filing of the Minister’s submissions to 7 July 2025.
On 4 July 2025, the Minister filed an Affidavit affirmed by Ms Natasha Bosnjak of Mills Oakley that annexed screenshots from the Department’s Integrated Client Service Engagement (ICSE) database that recorded the fourth applicant as offshore with no right of return to Australia.
On 8 July 2025, one day outside the time prescribed by the Court’s orders, the Minister filed its written submissions. At the hearing on 11 July 2025, the Minister sought leave for the late filing of those submissions. The Court granted the Minister leave.
At the hearing on 11 July 2025, the Minister opposed the Affidavit filed by the Primary Applicant on 1 July 2025. The Primary Applicant submitted that the materials should be admitted by the Court on humanitarian grounds on the basis that they show that they demonstrate how the applicants have lived their life since coming to Australia. The Court advised the Primary Applicant that the evidence sought to be tendered goes to the merits of the matter and had no bearing on whether or not the Tribunal made a jurisdictional error. Accordingly, the Primary Applicant withdrew the filing to that Affidavit.
Therefore, the materials before the Court are as follows:
(a)the Originating Application filed on 28 June 2019,
(b)an accompanying Affidavit which annexed the Delegate and Tribunal’s decision,
(c)a response filed by the Minister on 18 July 2019,
(d)a Court Book numbering 331 pages filed on 3 December 2021, marked Exhibit R1,
(e)an amended response filed on 17 February 2025,
(f)Primary Applicant’s written submissions and amended grounds of review filed on 1 July 2025,
(g)an Affidavit affirmed by Ms Natasha Bosnjak on 4 July 2025, marked Exhibit R2, and
(h)Minister’s written submissions filed on 8 July 2025.
The judicial review hearing
At the hearing, all of the applicants, except the Fourth Applicant, appeared in person and sought to be represented by Ms Gyuri Kim (the Third Applicant); a 24-year-old who has undertaken post-secondary education in Australia. The applicants also sought leave to be assisted by Mr William Albon as a ‘McKenzie friend’.[19] As the Minister did not oppose the Applicant’s request, the Court granted leave. During the course of arguments, Ms Kim became visibly distressed and sought permission from this Court for Mr Albon to make verbal submissions on behalf of the remaining applicants. Noting that the Minister did not object to the request, the Court granted leave. The Minister was represented by Rogan O’Shannessy, solicitor, of Mills Oakley.
[19] McKenzie v McKenzie [1970] 3 All ER 1034; Nepal v Minister for Immigration and Border Protection (2015), 327 ALR 89 per Edelman J at [13] to [16].
Prior to the hearing, the Court confirmed with the Primary Applicant that they had received a copy of the Court Book and the Minister’s written submissions.
Before this Court, submissions were made on behalf of the Primary Applicant in support of the grounds set out in the Originating Application filed on 28 June 2019 and written submissions filed on 1 July 2025. Those submissions are considered below.
The Minister made submissions consistent with the outline of written submissions filed by the Minister on 8 July 2025.
After the Minister made their submissions, the Court invited the Primary Applicant’s representative to respond to what the Minister’s representative had said. Those submissions are also referred to below.
THE ROLE OF THE COURT IN JUDICIAL REVIEW PROCEEDINGS
In Bhasker v Minister for Immigration and Multicultural Affairs[20] his Honour Judge Fary summarised the role of the Court in judicial review proceedings:
48.Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
49.Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[21]
50.“The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.” The court neither consider the merits of the decision nor remakes it.[22]
51.The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[23] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include “misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness”.[24] Different kinds of error may overlap.[25] The categories are not closed.[26] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[27]
52.In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a “realistic possibility” that the decision that was made “could” have been different, but for the error.[28] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[29] It has been described as an “undemanding” standard.[30]
[20] [2025] FedCFamC2G 620.
[21] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
[22] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 Allson CJ, Besanko and O’Callaghan JJ at [17].
[23] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
[24] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 (LPDT) at [3].
[25] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [82].
[26] LPDT at [3].
[27] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 at [82].
[28] LPDT at [7].
[29] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].
[30] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ (at [33]).
The Court as presently constituted respectfully adopts his Honour’s summary of the task before it.
Further, disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error.[31]
[31] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40]
CONSIDERATION
As stated above it became apparent during the hearing that it was intended that part of the submissions filed on behalf of the Primary Applicant on 1 July 2025 (referred to as “the ten points”) be treated as amended grounds of review (Amended Application). Although that was no clear on the face of the document filed on 1 July 2025, in fairness to the Primary Applicant the Court was prepared to accept the Amended Application. The Minister did not object. The Primary Applicant through his representatives abandoned the grounds of review contained in the Originating Application. It is not necessary to deal with those four grounds further.
To the extent that the submissions were made on behalf of the Primary Applicant in relation to specific grounds, they are summarised below in the context of considering each of the grounds. To the extent that submissions were made on behalf of the Primary Applicant that invited the Court to engage in merits review, they do not establish jurisdictional error in the Tribunal’s decision.
The Minister’s submissions addressed the four grounds of review in the Originating Application. Consequently, at the hearing the Minister’s representative was invited to address the ten grounds listed in the Amended Application.
Ground 1 – Amended Application
The Administrative Appeals Tribunal (AAT) as we identify below applied the wrong test(s) in determining our eligibility for the visa and the Tribunal did not provide us appropriate procedural fairness in making a decision when they did not consider all of the relevant information and this of course was a jurisdictional error.
It is noted that this ground contains broad statements and no particulars. Before the Court, Mr Albon was asked to expand upon the ground of review. He said that the reference to not considering “all of the relevant material” was a reference to the fair work complaint made by the Primary Applicant, the KAFTA issue and the hardship that the family would suffer if removed to South Korea.
The Primary Applicant’s claim that the Tribunal failed to consider certain material, including the fair work complaint and the KAFTA submissions, is not supported by the record. The Tribunal considered the fair work complaint (at [86]) and referred to KAFTA (at [104]–[109]). Further, the Tribunal put significant weight on matters relating to the daughters of the Primary Applicant.
To the extent that this ground contends that the Tribunal applied the wrong test and failed to consider all relevant material it must be rejected. The Tribunal properly identified the test and applied the correct statutory framework. The Tribunal noted that it had a discretion as to whether it cancelled the visa (that was due to expire in around two months’ time).
(a)The factors that weighed against cancelling the visa were; some financial detriment that the family would suffer and, more importantly, the significant disruption that the third, fourth and fifth applicants would suffer (the Tribunal gave this significant weight).
(b)The factors that weighed in favour of cancelling the visa were; the Primary Applicant’s failure to comply with the visa conditions (especially notifying the Department of the cessation of employment, and not seeking alternative employment/sponsorship), working as an Uber driver in breach of his visa conditions, there being no ongoing investigation in relation to the sponsor, there being no requirement for the Primary Applicant to remain in Australia for the purpose of any proceedings (none having being commenced at that time), the business interests of the applicants were speculative and, in any case, could be pursued in South Korea, and, most importantly, the evidence that the Primary Applicant paid money to be sponsored suggested that he was complicit in the venture (although ultimately exploited by the sponsor).
No error is to be found in the manner in which the Tribunal conducted itself. The Tribunal clearly demonstrated its reasoning along the way. To the extent that the Primary Applicant complains that the Tribunal did not give sufficient weight to certain matters, it is well established that the degree of weight to be given to evidence is a factual question for the decision-maker alone.[32] No jurisdictional error arises in this regard.
[32] see Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33] and Abebe v
Ground 1 is not made out.
Ground 2 – Amended Application
The AAT failed to recognise that we were denied natural justice by the Department of Home Affairs when we sought to meet with them to discuss the visa, where they responded;
“We are not able to discuss the matter face to face in a meeting or for you to attend an office” and continued, “we do not make appointments to meet with you face to face this matter future [sic] or for you to expand on points”
This demonstrated denial of natural was of course a jurisdictional error.
Ground 3 – Amended Application
At paragraph 14 and 15 the AAT hastily skating over the Kim challenge to the ‘Immigration Department’ intention to cancel a visa, failed to identify the repeated instances of denial of procedural fairness exercised by a New South Wales based Department of Home Affairs Visa Cancellation Officer when on 8 August 2018 a decision was taken to cancel the Kim visa and that further, so much other relevant consideration was not considered by the ‘visa cancelling officer’ a matter the AAT ought to have identified and this of course was a jurisdictional error.
These grounds allege a denial of procedural fairness by the Department and then seek to attribute that denial of procedural fairness to the Tribunal. It is contended that the Tribunal should have taken the purported denial of procedural fairness the Tribunal into account. The contention misconstrues the role of the Tribunal. The Tribunal conducts an independent merit review, to decide for itself what decision to make in relation to the relevant visa. The Tribunal did not adopt the reasoning of the Delegate but made its own findings. The Tribunal is not required to assess the lawfulness of the Delegate’s procedures. The Tribunal conducted its own review and hearing, thereby affording the Primary Applicant procedural fairness. No jurisdictional error arises in this regard.
Grounds 2 and 3 are not made out.
Ground 3 is not made out.
Ground 4 – Amended Application
The third dot point of paragraph 57 of the AAT determination while technically correct does however blatantly demonstrate a denial of natural justice in that the Applicant genuinely wished to set right a serious wrong committed by his employer, a substantive breach of work place law and in the Tribunal not giving sufficient countenance to this fact was of course jurisdictional error.
Home Affairs delegate and the AAT member were negligent in not heeding the ‘atmospherics’ that existed at the time in that the Fair Work Ombudsman was revealing sham employer practices, a plenty; (please see references to remarks from the High Court and the Fair Work Ombudsman).
Mr Kim told the Immigration delegate he was the target of these sham employer tactics and the decision taker was obligated to factor this into their deliberations, they did not this and that is jurisdictional error.
Similarly the Tribunal reviewer was beholden to Mr Kim to probe the omissions of the Immigration delegate and that this did not occur was jurisdictional error.
The magnitude of the Kim allegation of the impropriety by his employer ought to have been recognised by the Immigration delegate, it was not and then the error is compounded when the Tribunal reviewer fails to pick up on this glaring oversight.
June 2017 at just the time Mr Kim was alleging malpractice by Mr Park, FWO and the High Court had the following to say
“The sham arrangement provisions are, I accept, important provisions that protect employees from unscrupulous employers,” Justice Gilmour said.
Fair Work Ombudsman Natalie James says the outcome of the matter sends a clear message that her Agency will not tolerate attempts to use corporate trickery to try to disguise employment relationships as contracting situations.
“The significant resources we have committed to pursuing this matter for several years reflect the seriousness with which we treat sham contracting behaviour,” Ms James said.
“These proceedings send a message to unscrupulous employers about the consequences of sham contracting behaviour”.
“The High Court ruling we secured in this matter was also important because it creates greater legal protection for employees in situations where employers attempt to avoid responsibility for providing employees’ lawful minimum wages and entitlements by claiming employees are independent contractors,” Ms James said.
By this ground, the Primary Applicant submits that the Tribunal failed to give sufficient weight to the seriousness of the employment dispute.
The Court has already observed that the experience recounted by the Primary Applicant is an all too familiar and unacceptable experience of foreign workers who are exploited by local employers praying on their workers’ ambitions to obtain a visa that will allow them to stay in Australia.
The Tribunal also acknowledged the allegations of exploitation and considered the impact on the Primary Applicant and his family (at [114]). The Tribunal was entitled to conclude, on the evidence before it, that the hardship did not outweigh the reasons for cancellation. No jurisdictional error arises merely because the Primary Applicant disagrees with that assessment.
Ground 4 is not made out.
Ground 5 – Amended Application
Appropriately the AAT recognised Australia’s obligations at international law, in this instance the Convention of the Rights of the Child (CROC) and that is laudable. However the failure by the ‘visa cancelling officers’ to first identify pertinent parts of the convention and therefore ignoring and not considering aspects of CROC namely those as expressed at the AAT paragraph 100; “Article 28 provides that states recognise the right of a child to education” demonstrates the non-consideration of the relevant information not the least the overwhelming argument in favour of the Applicants daughters put by the girls teachers; was of course jurisdictional error.
The Primary Applicant submits that the Tribunal failed to properly consider Australia’s obligations under the Convention on the Rights of the Child (CROC). The Tribunal expressly referred to the CROC. The Tribunal also considered teacher testimonials and family hardship. There is no failure to consider relevant material.
Ground 5 is not made out.
Ground 6 – Amended Application
Australia again has international obligations that come into play in this judicial review application namely the Korea-Australia Free Trade Agreement (KAFTA) something glaring omitted from the ‘visa cancelling officers’ report something the Tribunal fails to pick up on which was of course jurisdictional error however there is more.
This ground repeats the earlier submission regarding KAFTA. As stated, the Tribunal considered KAFTA in detail. The Primary Applicant’s claim that the Tribunal failed to consult specific DFAT or parliamentary reports does not establish jurisdictional error.
Ground 6 is not made out.
Ground 7 – Amended Application
Still with KAFTA the Tribunal member appears to dismiss a four page appendix, that accompanied our earlier submission to the Department of Home an appendix that went to numerous features that afford the Applicant ‘protection’ which the Tribunal then suggests they do not understand when they report at paragraph 104, “As the Tribunal understood it” and then proceeded to ignore what was being put or in fact the opposite to their claim, the Tribunal did not understand KAFTA’s ramification which is further underscored by the Tribunal’s reliance on the text of the original agreement while failing to reflect on Department of Foreign Affairs and Trade KAFTA reports and Federal Parliamentary Committee’s KAFTA reports. The AAT having only ‘part of the picture’ was of course a classic example of the AAT not having considered all of the relevant information and this of course was a jurisdictional error.
The Primary Applicant contends that the Tribunal misunderstood KAFTA and failed to consider supporting materials. The Tribunal’s reasons indicate that it understood the general thrust of the Primary Applicant’s submissions. It was not required to consider every document or agree with the Primary Applicant’s interpretation of KAFTA.
Ground 7 is not made out.
Ground 8 – Amended Application
At paragraph 112 AAT err when they incorrectly ascribe to the notion that a 457 visa cannot of itself be a gateway to an application for permanent residence when clearly it can be such a vehicle and this false interpretation of the circumstances was of course a jurisdictional error.
The Primary Applicant alleges the Tribunal erred in stating that a subclass 457 visa could not lead to permanent residency. The Tribunal did not make such an absolute statement. Rather, it concluded that in the circumstances of this case, the Primary Applicant’s visa was not a pathway to permanent residency. No jurisdictional error arises in this regard.
Ground 8 is not made out.
Ground 9 – Amended Application
At paragraphs 114 and 115 that are not mutually complimentary or rather do not flow as a logical consequence as exampled;
114 As discussed above, the Tribunal has some sympathy for the applicant’s circumstances, in that it accepts he has sought to establish a life here with his family over approximately 4 years, that the circumstances that led to the cancellation of his visa do appear to have involved a degree of exploitation of him, and that his daughters’ schooling will be affected if they are now required to leave Australia.
115 Nevertheless, after careful consideration of the above factors individually and cumulatively, the Tribunal concludes that the factors in favour of cancellation outweigh those against.
Which of course is massively, procedurally unfair for to make such a quantum leap is a denial of natural justice and this was of course jurisdictional error.
The Primary Applicant argues that the Tribunal’s reasoning at [114]–[115] was internally inconsistent. The Tribunal acknowledged the Primary Applicant’s circumstances but ultimately concluded that the factors favouring cancellation outweighed those against. This is a classic merits assessment. To the extent that ground 9 is intended to convey irrationality on behalf of the Tribunal, the contention must be rejected. The Tribunal clearly considered all the matters that were put to it and weighed them up as it deemed appropriate. The Tribunal’s reasoning along the way is apparent. No jurisdictional error arises.
Ground 9 is not made out.
Ground 10 – Amended Application
The AAT did have its own jurisdiction to hear appeals per virtue of various individual statute thereby granting the AAT jurisdiction to review decisions subject to the operation of that particular statute and accordingly the Tribunal is wrong at their paragraph 117; “The Tribunal has no jurisdiction with respect to the other applicants”; which of course given its official power to make legal decisions and judgements it could and should have readily done so in relation to the three children picking up on (v) above and other features of the case which is jurisdictional error.
The Primary Applicant submits that the Tribunal erred in stating it had no jurisdiction in relation to the secondary applicants. The Tribunal’s conclusion was legally correct. Jurisdiction lies in respect of the primary visa holder, and the Tribunal had no power to review the dependent family members’ visas once the primary visa was cancelled. No jurisdictional error arises in this regard.
Ground 10 is not made out.
DISPOSITION
For the reasons set out above, this Court is satisfied that the Tribunal’s reasons were not affected by jurisdictional error.
Accordingly, the application for judicial review is dismissed. The Court will hear the parties on costs.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Johns. Associate:
Dated: 25 July 2025
SCHEDULE OF PARTIES
MLG 2055 of 2019 Applicants
Fourth Applicant:
MS GYU MIN KIM (discontinued)
Fifth Applicant:
MS JU HYUN KIM
Commonwealth of Australia (1999) 197 CLR 510 at [197] per Gummow and Hayne JJ.
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