Limpichotipong v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2025] FedCFamC2G 585
•24 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Limpichotipong v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 585
File number(s): MLG 673 of 2020 Judgment of: JUDGE J YOUNG Date of judgment: 24 April 2025 Catchwords: MIGRATION – application for judicial review – Temporary Work (Skilled) (Subclass 457) visa – where Administrative Appeals Tribunal affirmed a decision of the first respondent to refuse to grant the visa – where the first applicant was not the subject of an approved nomination – where Tribunal received adverse information and s 376 certificate was issued – whether failure to disclose certificate was material – found failure of Tribunal to disclose certificate was material –jurisdictional error established – application allowed. Legislation: Migration Act 1958 (Cth) ss 140GB, 359(1), 359C, 360(3), 376, 474, 476
Migration Regulations 1994 (Cth) sch 2, cll 457.233(4)(a), 457.223(4)(d)(i), 457.223(4)(d)(ii)
Cases cited: Craig v South Australia (1995) 184 CLR 163
Mango & Pamela Thai Restaurant Pty Ltd v Minister for Immigration. Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 584
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 41 Date of hearing: 11 March 2025 Place: Melbourne Counsel for the Applicants: Mr White Solicitor for the Applicants: DLegal Lawyers Solicitor for the First Respondent: Ms Oppel of Australian Government Solicitor Second Respondent: Submitting appearance save as to costs ORDERS
MLG 673 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PRAWECH LIMPICHOTIPONG
First Applicant
URISAPHAT THANASINTHANANAN
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
24 APRIL 2025
THE COURT ORDERS THAT:
1.The First Respondent’s name be amended to “Minister for Immigration and Multicultural Affairs”.
2.The Second Respondent’s name be amended to “Administrative Review Tribunal”.
3.A writ of certiorari be issued directed to the Administrative Appeals Tribunal quashing the decision dated 6 February 2020.
4.A writ of mandamus be issued directed to the Administrative Review Tribunal requiring it to reconsider and determine the Applicants’ Application according to law.
5.The First Respondent pay the Applicants’ costs in an amount to be fixed, if not agreed.
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 J YOUNG
INTRODUCTION
Before the Court is an Amended Application filed on 21 February 2025, in which the applicants seek judicial review of a decision of the second respondent (Tribunal) dated 6 February 2020. By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicants a Temporary Work (Skilled) (Subclass 457) visa (Visa).
This matter was heard concurrently with matter number MLG 672 of 2020, in which, by way of amended application filed on 21 February 2025, Mango & Pamela Thai Restaurant Pty Ltd seek judicial review of the Tribunal’s decision dated 6 February 2020 affirming the Delegate’s decision to refuse to grant Mango’s nomination of the first applicant under s 140GB of the Migration Act 1958 (Cth) (Act) for a Temporary Business Entry (Class UC) (Subclass 457) visa.
Each of the above applications raise three identical grounds of review in relation to the respective decisions of the Tribunal.
BACKGROUND
The applicants are citizens of Thailand. The first and second applicants are de facto husband and wife, respectively.
On 8 March 2017, the first applicant (Applicant) applied for the Visa. The second applicant was included in the Visa application as a dependent of the Applicant. In the Visa application, the applicants’ nominated a migration agent as their authorised recipient and provided the email address <[email protected]> for correspondence. The Visa application provided that Mango & Pamela Thai Restaurant Pty Ltd would be the nominating employer (Proposed Sponsor). The nominated position was listed as Café or Restaurant Manager.
On 10 April 2017, the Department of Immigration and Border Protection (Department) emailed the applicants’ migration agent requesting the applicants provide evidence of their de facto relationship. On 26 April 2017, the applicants’ migration agent provided further supporting material of the applicants’ de facto relationship.
On 19 December 2017, the Department emailed the applicants’ migration agent inviting the Applicant to comment on adverse information received in relation to the Visa application. The Department advised that the applicants’ Proposed Sponsor did not have an approved nomination and as such, the applicants’ Visa application was unlikely to succeed. On 11 January 2018, the applicants’ migration agent responded to the Department and requested that the Department “hold” the Visa application while the Applicant’s Proposed Sponsor appealed the nomination decision.
On 18 January 2018, the Delegate refused to grant the applicants’ the Visa. The Delegate was not satisfied the Applicant was the subject of an approved nomination as required by cl 457.233(4)(a) of sch 2 of the Migration Regulations 1994 (Cth) (Regulations). The Delegate was not satisfied that the second applicant was a member of the family unit of a person who holds the Visa.
On 23 January 2018, the applicants applied to the Tribunal for review of the Delegate’s decision. In the application for review, the applicants nominated the registered migration agent’s email address <[email protected]> (representative’s email address) for correspondence.
On 21 May 2019, an officer of the Department provided to the Tribunal information received on the Border Watch Allegations and Referrals Team web form on 29 March 2019. The information contained allegations that, amongst other things, the Applicant had been employing people on “holiday visa” (Adverse Information). The Adverse Information was accompanied by a certificate dated 21 May 2019 which notified the Tribunal that s 376 of the Migration Act 1958 (Cth) (Act) applied to the Adverse Information (Certificate). The Certificate indicated that disclosure of the Adverse Information would be contrary to public interest because it may disclose, or enable a person to ascertain the existence or identity of, a confidential source of information. The Tribunal did not inform the applicants of the existence of, or the content of, the information covered by the Certificate.
On 10 June 2019 and 25 June 2019, the Applicant emailed the Tribunal and provided material in support of their review application.
On 22 January 2020, pursuant to s 359(1) of the Act, the Tribunal emailed the applicants’ migration agent inviting the applicants to provide information addressing the requirements of cl 457.233, including:
(1)their intention to perform the occupation was genuine (cl 457.223(4)(d)(i)); and
(2)the position associated with the nominated occupation was genuine (cl 457.223(4)(d)(ii) (s 359 Letter).
The Tribunal requested that the applicants respond to the s 359 Letter by 5 February 2020, and advised the applicants that any request for an extension of time to provide the information must also be received by 5 February 2020. The applicants were informed that if the Tribunal did not receive the information within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain the information. Moreover, the applicants were informed that if the Tribunal did not receive the information, they would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
On 6 February 2020, the Tribunal affirmed the decision of the Delegate to refuse to grant the applicants the Visa.
On 7 February 2020, the applicants’ representative emailed the Tribunal requesting an extension of time to respond to the s 359 Letter and also attached several letters in support of the applicants from members of the community and local council.
On 10 February 2020, the Tribunal sent a copy of its decision and reasons to the applicants via their representative’s email address.
On 10 February 2020, the applicants’ representative provided additional information in person to the Tribunal in response to the s 359 Letter.
On 12 February 2020, the Tribunal emailed the applicants’ migration agent advising that it had received the applicants’ submissions dated 10 February and provided those to the Member. The Tribunal advised that the Member had decided not to reopen the case as its decision had been made on 6 February 2020.
TRIBUNAL DECISION
The Tribunal issued its statement of decision and reasons on 6 February 2020 (Tribunal Decision).
At paragraphs [3] – [4] of the Tribunal Decision, the Tribunal identified that the issue was whether the Applicant met the requirements of cl 457.223(4) of the Regulations and noted that the Delegate refused to grant the Visa because the Applicant was not the subject of an approved nomination.
At paragraphs [5] – [6] of the Tribunal Decision, the Tribunal stated that it wrote to the applicants on 22 January 2020 pursuant to s 359 of the Act inviting the applicants to address the requirements of cl 457.223 and confirmed that this correspondence was provided to the applicants’ last known address. The Tribunal further noted that no such information was provided within the prescribed period nor was an extension of time granted. The Tribunal concluded that s 359C applied and pursuant to s 360(3) the applicants were not entitled to appear before the Tribunal. As a result, the Tribunal decided to proceed to a decision without taking any further steps to obtain the information
At paragraph [8] of the Tribunal Decision, the Tribunal noted that cl 457.223(4)(d) required that the Applicant’s intention to perform the occupation was genuine and the position associated with the nominated occupation was genuine.
At paragraph [9] of the Tribunal Decision, the Tribunal again referred to the s 359 Letter which invited the applicants to provide information addressing the requirements of cl 457.223. The Tribunal noted that the applicants did not provide a response to the s 359 Letter.
At paragraphs [10] – [11] of the Tribunal Decision, the Tribunal found that when considering the “limited and outdated material” before it, it could not be satisfied that the Applicant genuinely intended to perform the occupation, nor that the position associated with the nominated occupation was genuine and thus the requirements of cl 457.223(4)(d) were not met.
At paragraph [12] of the Tribunal Decision, the Tribunal found that the second applicant also did not satisfy the criteria required by cl 457.223.
Accordingly, the Tribunal affirmed the Delegate’s decision not to grant the Visa.
APPLICATION FOR JUDICIAL REVIEW
The applicants applied for judicial review of the Tribunal’s decision on 27 February 2020 and filed an Amended Application on 21 February 2025.
The Amended Application contains the following grounds for judicial review (without amendment):
1.The Tribunal denied the Applicants procedural fairness by failing to disclose to the Applicants the existence of the Secretary’s certificate and notification under s 376 of the Migration Act 1958 (Cth) (Act) dated 21 May 2019.
2.The Tribunal constructively failed to exercise its review jurisdiction by failing to consider the material before it to the relevant legal standard, including material provided by the Secretary under s 352(4) and evidence and submissions provided by the Applicants.
3.The Tribunal exercised its power under s 348 of the Act unreasonably, in that it finalised its review one day after the deadline for the giving of information under s 359 without making any further attempt to contact the Applicants.
The applicants also filed the following in support of the Amended Application:
(1)an affidavit filed on 27 February 2020 annexing a copy of the Tribunal Decision; and
(2)written submissions filed on 21 February 2025.
The Minister filed a Response on 18 March 2020. The Response sought orders that the matter be listed for a show cause hearing and the application be dismissed and orders as to costs on the grounds that the applicants had not raised an arguable case and that the Tribunal’s decision is not affected by jurisdictional error.
The Minister also filed the written submissions and a further affidavit on 5 March 2025.
The hearing
The hearing took place on 11 March 2025. On that occasion, the present application was heard consecutively with MLG 672 of 2020.
The applicant was represented by Mr White of Counsel. The Minister was represented by Ms Oppel, solicitor for Australian Government Solicitor.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
LEGISLATIVE CONTEXT
Section 376
The Certificate was issued pursuant to s 376 of the Act which, at the relevant time, provided as follows:
Tribunal’s discretion in relation to disclosure of certain information etc.
(1) This section applies to a document or information if:
(a) the Minister:
(i)has certified, in writing, that the disclosure of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; and
(ii)has not included a statement in the certificate that the document or information must only be disclosed to the Tribunal; or
(b)the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence and section 375A does not apply to the document or information.
(2)Where, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
(a)shall notify the Tribunal in writing that this section applies in relation to the document or information; and
(b)may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
(3)Where the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:
(a)may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
(b)may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary pursuant to subsection (2), disclose any matter contained in the document, or the information, to the applicant or to any other person who has given oral or written evidence to the Tribunal.
CONSIDERATION
Ground 1
As to Ground 1 of the Amended Application, I consider that the Tribunal’s error in failing to disclose the Certificate was material and jurisdictional error is established. I refer to and repeat my reasoning set out in paragraphs [38] – [54] of Mango & Pamela Thai Restaurant Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 584.
Grounds 2 and 3
Having found that Ground 1 establishes jurisdictional error on the Tribunal’s behalf it is not necessary that I consider the remaining grounds advanced by the applicants.
DISPOSITION
It follows from the above that a writ of certiorari be issued to quash the decision of the second respondent and a writ of mandamus be issued and directed to the Administrative Review Tribunal requiring it to review the decision according to law.
The applicants seek that the Minister pay their costs. I shall order that the Minister pay the applicants costs in an amount to be fixed, if not agreed.
The Minister seeks orders amending the name of the first respondent to “Minister for Immigration and Multicultural Affairs”. I shall order accordingly.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 24 April 2025
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