Lin v Minister for Immigration

[2020] FCCA 3349

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIN & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 3349

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Regional Employer Nomination (subclass 187) visa – where there was no approved nomination – whether the Tribunal made a jurisdictional error in refusing the application – no jurisdictional error made out – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), sch.2

First Applicant: JINGYU  LIN

Second Applicant: WEITING ZHANG

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 529 of 2020

Judgment of: Judge Street

Hearing date: 8 December 2020

Date of Last Submission: 8 December 2020

Delivered at: Sydney

Delivered on: 8 December 2020

REPRESENTATION

The applicants appeared in person via Microsoft Teams.

Solicitors for the Respondents: Ms S Balakrishnan, Australian Government Solicitor, Microsoft Teams

ORDERS

1. The oral application for an adjournment is refused.

2. The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

3. The applicants pay the first respondent’s costs fixed in the amount of $3,737.00.

DATE OF ORDER: 8 December 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 529 of 2020

JINGYU  LIN

First Applicant

WEITING ZHANG

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. 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”) affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicants a Regional Employer Nomination (subclass 187) visa (“the Visa”).

2. The applicants, who are citizens of China, applied for the Visa on 16 October 2017. This was on the basis of a nominated position by a nominator, being the prospective employer of the first applicant, called Rosehill Orchards Pty Ltd. The nominator’s nomination was refused by a delegate of the first respondent on 6 June 2018. 

3. On 5 July 2018, the Delegate found the applicant’s application for the Visa failed because they did not have an approved nomination. The applicants applied for review on 18 July 2018. By letter dated 28 November 2019, the Tribunal invited the applicants to comment on the position that they did not have an approved nomination and could not accordingly succeed in obtaining the Visa. 

4. The applicants provided a response, and the Tribunal, as it was required under the statutory regime, conducted a hearing on 3 February 2020.  The applicants’ representative attended on that occasion, as well as the first applicant and his wife, as a member the family unit, being the second applicant.

5. It is apparent that, at the hearing, the Tribunal raised with the applicants the want of an approved nomination. The Tribunal pointed out that an essential requirement of cl 187.233 of Sch 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) is that the applicant must have an approved nomination. 

6. The Tribunal found that in circumstances where there was no approved nomination, the criteria under cl 187.233(3) of sch 2 to the Regulations were not met and affirmed the decision not to grant the applicants the Visa.

Before the Court

1. The applicants applied to the Court for review on 5 March 2020. Orders were made on 30 March 2020 giving the applicants an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed. The matter was fixed for a show cause hearing today under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). 

2. At the commencement of the hearing, the Court explained to the applicants the nature of a show cause hearing under r 44.12 of the  Rules, and the first applicant confirmed that he understood the explanation given by the Court.

3. The first applicant indicated that he wanted an adjournment. No application in a case had been filed seeking adjournment or any affidavit evidence in support of an adjournment. 

4. The first applicant referred to recent communications with his agent in relation to a company from which he wished to obtain a nomination. The applicant also wanted an adjournment on the basis that he wanted to obtain a witness to give evidence about the alleged nomination. Neither of the two grounds identify any proper basis upon which an adjournment should be granted. Further, the applicant has had ample time to put on any relevant material if he was able to do so.

5. This Court is not in a position to make fresh findings of fact in relation to the underlying merits. No proper basis was identified upon which the Court could find any arguable case of relevant error by the Tribunal.  That is because the applicant did not have an approved nomination that was an essential requirement for the grant of the Visa. 

6. The adjournment was opposed by the first respondent. 

7. The Court has also taken into account the complete want of merit in the substantive application of the applicants in deciding whether an adjournment is appropriate. 

8. It is for these reasons that the Court is not satisfied that an adjournment is warranted in the interests of the administration of justice. 

9. The applicants then contended that there had been a request for a witness to give evidence that the Tribunal had failed to call. There is no evidence to support that proposition.

10. The next submission advanced by the applicants was that the agent, Mr Griffiths, had been unable to attend the hearing. This is inconsistent with the hearing record. 

11. The first applicant then made the submission that the Tribunal was biased. No ground or conduct was identified to support the assertion. This was a baseless submission and should not have been made. It is apparent that the Tribunal explained to the applicants the mandatory requirement for an approved nomination. On the face of the material before the Court, the applicants had a real and meaningful hearing before the Tribunal.

12. On the face of the Tribunal’s reasons, there is no basis to find that the Tribunal did other than to approach the review with an open mind reasonably capable of persuasion as to the merits. The adverse finding by the Tribunal is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.

13. The submission advanced, of bias on behalf of the Tribunal, is all that much more surprising, given the reasons by the Tribunal endeavouring to assist the applicants insofar as they sought to pursue Ministerial intervention. 

14. The reality is that the applicant’s application for review to the Tribunal was hopeless and bound to fail in the absence of an approved nomination.  The applicants were on notice of that problem, and on its face the application to the Tribunal was bound to fail without an approved nomination. 

15. Nothing said by the applicants identified any arguable case of relevant error by the Tribunal.

The ground

1. The ground in the application is as follows:  

   1.Circumstances in relation to the refusal of nomination application.

2. The ground does not identify any arguable case of relevant error by the Tribunal. 

3. The application to this Court without an approved nomination was bound to fail. The applicants had no reasonable prospects of success in circumstances where there was no approved nomination. 

4. The Court is satisfied that the application has not raised an arguable case for relief claimed. The Court is satisfied that this is an appropriate case in which to exercise the Court’s powers under r 44.12 of the Rules. 

5. The application is dismissed under r 44.12 of the Rules. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 8 December 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 22 February 2021