Qiao v Minister for Immigration and Multicultural Affairs (No 2)
[2025] FedCFamC2G 84
•29 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Qiao v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 84
File number: SYG 844 of 2024 Judgment of: JUDGE D HUMPHREYS Date of judgment: 29 January 2025 Catchwords: MIGRATION – Administrative Appeals Tribunal – Regional Employer Nomination (Permanent) (Class RN) visa – substantive judicial review application –application for review of a judicial Registrar’s decision to set aside order as to costs refused – should costs follow the event – where the applicant’s legal representative withdrew from substantive proceedings – whether the applicant had standing to challenge a Nomination decision – whether the applicant met cl 187.233 of the Migration Regulations 1994 (Cth) – application dismissed. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.07, 12.02,13.13(a), 17.05,21.03
Migration Act 1958 (Cth) ss 359A, 477(2)
Migration Regulations 1994 (Cth) Sch 2, cl 187.233, 187.311, reg 5.19
Cases cited: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 35
Lift Shop Pty Ltd v Next Level Elevators Pty Ltd [2021] FedCFamC2G 286
Patel v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 501
Qiao v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 951
Singh v Immigration and Border Protection (2017) 253 FCR 267
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123
Division: Division 2 General Federal Law Number of paragraphs: 75 Date of hearing: 28 November 2024 Place: Parramatta Counsel for the Applicants: Mr Leong (28 November 2024) Solicitor for the Applicants: Ms Wang (Juris Cor Legal; 28 November 2024) Counsel for the First Respondent: Mr Johnson Solicitor for the First Respondent: Mr Cacaj (Clayton Utz) Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 844 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: XI QIAO
First Applicant
JIA LU
Second Applicant
RUOXIN QIAO
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINSITRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
29 JANUARY 2025
THE COURT ORDERS THAT:
1.The Amended Application for judicial review filed 2 September 2024 is dismissed.
2.The First and Second Applicant are to pay the First Respondent’s costs fixed in the sum of $4,189.92.
THE COURT NOTES THAT:
A.The amount fixed in Order 2 above includes the cost of both the substantive and interlocutory hearing.
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 D HUMPHREYS
INTRODUCTION
This matter concerns an Application for Review (“Review Application”) of a Registrar’s decision filed 29 October 2024 seeking an order to set aside a decision to reserve costs, made by Judicial Registrar Cummings on 4 October 2024. Registrar Cummings determined to dismiss an application made by the first respondent to summarily dismiss the proceedings pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“ Rules”). Registrar Cummings ordered that the issue of costs of the application be dealt with by a Judge at a final hearing.
The substantive judicial review application (“Substantive Application”) sought review of a decision of the Administrative Appeals Tribunal (“the Tribunal”), as it was then, dated 18 March 2024 to affirm a decision of the delegate of the Minister (“the delegate”) to refuse to grant the first applicant a Regional Employer Nomination (Permanent) (Class RN) visa (“the visa”).
The matter was listed before me on a final hearing basis for all matters, including the Review Application, on 28 November 2024.
The following judgment provides a determination on the Review Application heard on 28 November 2024 and Substantive Application which was determined on the papers.
BACKGROUND
The first applicant applied for the visa on 11 November 2019 to work in the nominated position of Customer Service Manager for D.L & M.A. Leslie Pty Ltd, the Nominator. The second and third applicants, his wife and child, were listed as members of the applicant’s family unit.
On 21 February 2022, a delegate refused to grant the visa because the applicant did not meet cl 187.233(3) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) in that he was not the subject of an approved nomination.
On 4 March 2022, the applicant lodged an application for merits review Tribunal.
On 26 September 2023 and 16 October 2023, the Tribunal invited the applicants and the Nominator to give evidence and present arguments before it.
On 16 January 2024, the Tribunal affirmed the decision of the delegate to refuse the Nominator’s application for approval of the nomination.
On 26 February 2024, the applicants were invited by the Tribunal, pursuant to s 359A of the Migration Act 1958 (Cth) (“the Act”) to comment or respond to particulars of information which regarded the Nominator’s application being refused. The s 359A letter stated that if no response was received by 11 March 2024, the applicants would lose their entitlement to appear before the Tribunal. No response was provided to the Tribunal.
On 18 March 2024, the Tribunal affirmed the delegate’s decision under reg 5.19 of the Regulations.
The applicants filed an application for judicial review on 25 April 2024 and simultaneously applied for an extension of time. The first respondent, through correspondence to the Court, consented to the application for an extension of time. On 18 July 2024, Registrar Cummings made an order pursuant to s 477(2) of the Act that the time in which the applicants may apply for judicial review be extended nunc pro tunc to 26 April 2024.
APPLICATION BEFORE THE COURT
On 15 August 2024, the first respondent applied to the Court for the applicant’s judicial review application to be summarily dismissed.
The matter was heard before Registrar Cummings on 3, 20 and 27 September 2024. The matter was reserved for judgment on 20 September 2024.
On 4 October 2024, Registrar Cummings delivered judgment in the matter and made the following orders (see: Qiao v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 951):
1.The Minister’s application for summary dismissal be dismissed.
2.The parties’ costs of the Minister’s summary dismissal application are reserved as an issue to be dealt with at final hearing by the trial judge.
3.The matter is adjourned for a directions hearing by telephone at 9:30am SA time (10:00am NSW time) on Tuesday 15 October 2024.
On 15 October 2024, in orders made by Registrar Cummings, the substantive application was listed for final hearing before me on Thursday 28 November 2024.
On 29 October 2024, the applicant’s legal representative, who has since withdrawn from the proceedings, filed an application for a review of Registrar Cummings orders of 15 October, seeking the final hearing on 28 November 2024 be vacated and the matter relisted for hearing after 31 January 2025 in order to determine the issue of costs of the summary dismissal application prior to the matter being listed for final hearing.
The orders sought in the Applicant’s Review Application are as follows (verbatim):
1. Order 1 of the orders made by Judicial Regitrar Cummings be vacated.
2. All extant programming orders be vacated.
2. This matter ve listed for hearing to determine the issue of costs in relation to the Minister's summary dismissal application no earlier than 31 January 2025.
3. The applicants are to file and serve the following on or before 20 December 2024:
a. written submissions in support of their costs application; and
b. any evidence on which they intend to rely in support of the costs application.
4. The Minister is to file and serve the following on or before 17 January 2025:
a. written submissions in opposition of the costs application; and
b. any evidence on which they intend to rely in opposition of the costs application.
5. Liberty to apply on 3 days' written notice.
Alongside the Review Application, the applicant filed an Affidavit of Xi Qiao, affirmed on 29 October 2024 where, inter alia, he submitted that he has commenced proceedings in the Fair Work Commission and his legal representatives have estimated costs of $27,500.00 for those legal expenses. Further, the applicant has incurred legal expenses totalling $26,617.25 in relation to the summary dismissal application in this Court.
The applicant deposes at [19], [20] and [21] of the Affidavit of 29 October 2024 that:
[19] As of 25 October 2024, I have $76.59 in my bank account. Annexed and marked with the Letter A (page I) is the screenshot of my bank account balance on 25 October 2024.
[20] I am unable to afford the legal expenses in relation to:
a. the final hearing listed on 28 November 2024; and
b. the Appeal.
[21] If I do not recover the costs incurred in relation to the Summary Dismissal Application, I will be unable to afford legal representation for:
a. the final hearing listed on 28 November 2024; and
b. the Appeal
The applications before the Court are determined in turn below.
The Applicant’s Submissions: Review Application
The applicant’s written submissions were received by the Court on 25 November 2024. The Orders of Registrar Cummings dated 15 October 2024 directed that the applicants were to file their submissions on or before 1 November 2024.The applicant’s legal representatives did not seek leave of the Court to file these submissions late.
At the hearing on 28 November 2024, Counsel who appeared for the applicant, stated he only appeared in relation to the Review Application and was not instructed in relation to the substantive application.
In support of the Review Application to set aside the Orders of Registrar Cummings, the applicants representatives set out three preliminary issues. Firstly, that the submissions address the application which seeks to change Registrar Cummings’ “costs reserved” decision.
Secondly, it was submitted that the applicants can only cover legal expenses for the Application for Review filed on 29 October 2024 and not the substantive proceedings. If the Court determined that the applicant’s Review Application is denied, then the applicant’s legal representative would cease to act on the date of Hearing, pursuant to r 9.03 of the Rules.
The applicant’s representatives flagged their intentions to read into evidence an Affidavit of Service of Yaoyi Wang, containing a Notice of Intention to Withdraw as a Lawyer and additionally tender the Notice of Intention to Withdraw Itself and file in Court the Notice of Withdrawal as a Lawyer. The applicants’ representatives indicated if the Court makes an adverse decision, they will remain in the Court but only to observe the substantive judicial review application.
Thirdly, the applicants Counsel does not assert whether the application is brought under r 21.03 or 17.05 of the Rules, rather they ask the Court to “look at the substantive issue, whether Judicial Registrar Cummings ‘costs reserved’ decision should be changed, rather than technicalities”. However, if it is necessary for the determination of the application then r 1.07 can be used in the interests of justice to dispense with strict compliance.
The applicant submits that costs should follow the event even in the instance of an interlocutory event. The applicant’s Counsel highlighted multiple judgments of Registrar Cummings’ regarding decisions on r 13.13(a) applications for summary dismissal where the Minister has won. Counsel submits that Registrar Cummings has adopted this approach when the Minister wins, however in the summary dismissal decision (“Qiao”), was not satisfied that costs should follow the event.
The applicant disagrees with Registrar Cummings’ determination at [73] of Qiao that the “litigation has a long way to run” and to reserve costs in the matter for the judicial officer who will determine the substantive matter. Counsel submits that there are different outcomes for r 12.12(a) application depending on who wins such that the Minister will enjoy costs following the event if they win, supposedly because there is not a ‘long way to run’, whereas applicants who win will be deprived of costs because there is a ‘long way to run’.
The winner of an interlocutory contest should not be deprived of the costs of that contest even where they may be ordered to pay costs at the final contest in the event they lose.
The applicant cites the matter of Lift Shop Pty Ltd v Next Level Elevators Pty Ltd [2021] FedCFamC2G 286, a copyright infringement matter whereby in an unsuccessful r 13.13(a) application, costs were ordered against the applicant.
The applicant submits that the Minister has “de facto” achieved a summary dismissal, despite losing the application, due to the “suffocation” or “stifling effect” of Registrar Cummings’ order to reserve costs. The applicants would have funds to run the final judicial review application if it was not for the unsuccessful application brought by the Minister for summary dismissal which has consumed their litigation budget. As a result, the applicants require the Court to make an order as to costs before a further hearing for the substantive application.
If the Court accepts the submissions of the applicant, timetabling orders can be made for Hearing as to the costs submissions or the Court should make a costs order in the applicant’s favour in relation to the summary dismissal application.
The First Respondent’s Submissions: Review Application
The first respondent submits that the applicant’s application lacks clarity as to whether they seek a de novo review of the question of costs under r 21.03 of the Rules or whether they seek an order under r 17.05 to vary or set aside a judgement. In the event that the applicant seeks an application under r 21.03, the application would be incompetent seeing as it was not filed within 7 days of the order under challenge, pursuant to r 21.03(3). The applicant has also not sought an extension of time or given an explanation for the delay in filing.
The applicant’s orders seemingly seek to have programming orders by Registrar Cummings dismissed despite that the intention of the orders sought appear to seek that Order 2 of the orders made on 4 October 2024 dismissed instead.
The first respondents argue that if the applicant is taken to have sought an extension of time under r 21.02 it should be refused because they did not provide an explanation for the delay and because the substantive application is listed on 28 November 2024 and the Court would not have time to determine the costs application which was brought late by the applicants.
If the applicants seek to set aside Order 2 made on 4 October 2024, this can only be done in certain circumstances pursuant to r 17.05 of the Rules which relevantly provides:
Setting aside or varying judgments or orders
(1) The Court or a Registrar may vary or set aside a judgment or order before it has been entered.
(2) The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party; or
(b) it was obtained by fraud; or
(c) it is interlocutory; or
(d) it is an injunction or for the appointment of a receiver; or
(e) it does not reflect the intention of the Court; or
(f) the party in whose favour it was made consents; or
(g) there is a clerical mistake in the judgment or order; or
(h) there is an error arising in the judgment or order from an accidental slip or omission.
(3) This rule does not affect the power of the Court or a Registrar to vary or terminate the operation of an order by a further order.
If the orders of Registrar Cummings have been entered, then the application is assessed under r 17.05(2). The first respondent accepts that the 4 October 2024 orders are interlocutory orders given that they did not purport to dispose of the entirety of the substantive proceedings or the rights of the parties.
The Court must then decide whether or not it should set aside the Orders of Registrar Cummings.
The application does not have any characteristics which might be regarded as exceptional.
The first respondent submits that, firstly, the issue of how costs should be handled following the summary dismissal application was the subject of submissions made by the parties before the order was made. Registrar Cummings’ interlocutory judgment relevantly provides at [73] that:
The applicants sought a discrete costs order in relation to the application for summary dismissal in the event that application was dismissed, whereas the Minister argued that the appropriate order in that event would be for costs to be reserved. I am persuaded that the Minister’s position on costs is correct. This litigation has a long way to run, and the judge who hears the trial in this matter will have a better vantage point to determine where the costs of the entire cause should lie.
The applicants’ disagreement with the Registrar’s order is not reason enough to justify the Court setting aside the orders, especially where the parties were heard as to the appropriate orders to be made.
Secondly, the applicants have not provided a “clear or adequate explanation as to why they ask the Court to set aside the Judicial Registrar’s costs order and make a costs order in their favour”.
Although the applicant has deposed that they have incurred significant legal expenses, notably $26,617.25 to defend the summary dismissal application and expenses incurred in the Fair Work Commission, where he has commenced proceedings against his former employee, he has not deposed what, if any of the expenses he has paid.
The first respondent argues that it is unclear whether these legal expenses have been paid to the lawyers or if these are monies still requiring payment, further how much of the legal expenses have been paid on “bank deposits “and why he is unable to continue to rely on these to fund his legal expenses.
Even if the applicant does not have sufficient funds to meet the legal expenses of these proceedings and those in the Fair Work Commission, this does not rise to a standard which justifies the Court setting aside the Registrar’s order.
The evidence adduced by the applicant does not warrant the setting aside of orders under r 17.05.
DETERMINATION: APPLICATION FOR REVIEW
The Court noted that the matter was set down for final hearing, which included both the substantive application for judicial review together with the costs issue relating to the decision of Registrar Cummings to reserve on costs in relation to the application for summary dismissal.
The Court indicated that leave to withdraw would not be granted to Counsel appearing for the applicant and the Court proposed to deal with the matter to finality given the matter was listed for a final hearing, Counsel for both the applicant and the Minister were present and the Court had the time available to hear the matter to finality. Any issue as to costs would then be dealt with as part of the final orders of the Court.
The Review Application to set aside the orders of Registrar Cummings was refused by order of the Court on 28 November 2024.
SUBSTANTIVE JUDICIAL REVIEW APPLICATION
Administrative Appeals Tribunal’s decision:
The Tribunal identified that the issue before it was whether the applicant satisfied cl 187.233(3), relevantly, that the Minister had approved the nomination.
The Tribunal identified that cl 187.233 requires that the position is one which was the subject of the declaration made as part of the current visa application. Further the other criterion of the visa required that.
·the person who will employ the applicant is the person who made the nomination
·the nomination has been approved and has not been subsequently withdrawn
·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information
·the position is still available to the applicant, and
·the visa application was made no more than six months after the nomination of the position was approved.
The Tribunal affirmed the review application as against the employer as they had found that reg 5.19(9)(d) was not satisfied “since the nominator does not employ staff but utilises the services of a labour hire firm” [12]. Therefore, there was no need for the first applicant, Mr Qiao, identified to work in the position of Customer Service Manager under the Nominator’s direct control.
The Tribunal found that the applicant did not satisfy cl 187.233 and as no other claims were made in respect of the other streams, the decision under review was affirmed.
The secondary applicants’ application was refused on the basis that they did not satisfy cl 187.311 as they made a combined application with the primary applicants as members of the family unit, being his wife and child. As a result of the primary applicant not holding a visa, the secondary applicants subsequently do not satisfy the clause.
GROUNDS OF JUDICIAL REVIEW
The applicant’s grounds of judicial review are contained in an Amended Application filed on 2 September 2024. They are reproduced as follows (less particulars);
1.There will be substantial miscarriage of justice if the visa application was refused only because of the employer nominator refusal which the applicants have standing to challenge.
2.The Applicants will obtain a transcript of the Hearing before the Tribunal and a copy of the documents before the Tribunal. On receipt of these documents the Applicants may file an amended application containing further grounds.
The Applicant’s Submissions: Substantive Application
At the hearing on 28 November, Counsel appearing for the applicant declined to make any oral submissions, instead simply relying upon the written submissions that had already been filed. This approach did not assist the Court. A request was made for the applicant to be permitted to file supplementary written submissions. This application was granted.
An extension of time was granted by Orders made on 12 December 2024 to enable the applicant to file submissions, after the withdrawal of their legal representatives. The applicant sought a further extension which was granted. No further written submissions were received by the Court in regard to the substantive application. The matter was determined on the basis of the material which was already received by the Court.
In submissions dated 2 September 2024, drafted by Mr Condon, as compared to Mr Leong who appeared at the hearing on 28 November, it was conceded that the Court was bound by the decision of the Full Federal Court in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123 (“Singh”) at [100], [122] – [128] where the majority (O’Sullivan and Raper J agreeing) concluded that the applicant’s do not have standing to challenge the employer nomination decision and/or mount a collateral challenge.
It was submitted that the reasoning of Charlesworth J at [49] – [52] on this point was to the contrary and should be preferred. Further, that the matter should be reopened and determined by a Full Bench of five Federal Court judges, noting that as compared to Singh, the nominator did not challenge the decision denying it judicial review whereas in this matter the Nominator discontinued its appeal.
In supplementary submissions by Mr Condon, dated 17 September 2024, it is submitted that, contrary to the Respondent’s submissions, the position of the Nominator is not immutable. The applicant has commenced proceedings in the Fair Work Commission asserting unfair dismissal seeking first, reinstatement into his position as a Customer Service Manager and second, continued sponsorship for a Regional Sponsored Migration Scheme (sub-class 187) visa. This Court should not assume what might happen in the Fair Work Commission including that the Nominator being ordered to initiate a fresh challenge to the Minister’s decision to refuse the Employer Nomination.
The First Respondent’s Submissions: Substantive Application
The first respondent submits that the judicial review application only raises in substance one ground, of which there is no articulated jurisdictional error. The particulars to ground one suggest that it is directed towards errors in the Nomination Decision, namely that the decision should be void and/or ought to be quashed for error of law, with the result that the applicants were deprived of the possibility of a successful outcome on their own application for a review.
The first respondent cites the judgment of Singh [2023] FCAFC 123 to support the proposition that the applicants lack standing to challenge the Nomination Decision. The decision in Singh considered appellants who, in seeking relief in relation to the Tribunal affirming a decision to refuse to grant them a visa, collaterally sought to challenge the Tribunal’s decision refusing to approve a nomination. The majority held in Singh that the applicants did not have standing to challenge the Nomination Decision.
The Court is bound to follow Singh and must dismiss the application despite the applicant’s amended application expressly asserting that they have standing to challenge.
Further, the application should be dismissed in circumstances where it would be futile for the Court to issue the relief sought. Relying on Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 35 at [74] (Edelman J) it was submitted that the Court has a residual discretion to refuse relief if no useful result could ensue.
For the grant of the visa, the applicant must meet the criteria set out in cl 187.223 which provides that:
1) The position to which the application relates is the position:
(a) nominated in an application for approval that:
(i) identifies the applicant in relation to the position; and
(ii) is made in relation to a visa in a Direct Entry stream; and
(iii) seeks to meet the requirements of subregulation 5.19(12); and
(b) in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2) The person who will employ the applicant is the person who made the nomination.
(3) The Minister has approved the nomination.
(4) The nomination has not subsequently been withdrawn.
Even if the Court were to remit the matter back to the Tribunal, the applicant would still be unable to meet cl 187.223 for reasons that, his Nominator’s nomination application has been refused and the Nominator has filed a Notice of Discontinuance, meaning that it has not sought to challenge the Nomination decision. Further, the proceedings against the applicant’s former employees in the Commission have been dismissed and there is no evidence to suggest that the applicant has sought permission to appeal that decision.
If the applicant was to obtain a different approved nomination this would not satisfy the criteria for the visa, as per Singh v Immigration and Border Protection (2017) 253 FCR 267 at [88]-[90] (Mortimer J) (Jagot and Bromberg JJ agreeing).
The visa application does not relate to a position nominated in an application for approval, for which it has been approved. If the matter is remitted to the Tribunal this would be futile as the Tribunal would be bound to affirm the delegate’s decision once more; (see: Patel v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 501 at [14] (Wigney J)).
DETERMINATION: SUBSTANTIVE JUDICIAL REVIEW APPLICATION
The factual circumstances in this matter are quite clear.
The applicant does not have an approved nominator for the nominated position. Accordingly, the applicant cannot meet the requirements of cl 187.233 which require the applicant to have an approved employer nomination, in order to be granted the visa sought. The Tribunal refused a merits review application of the nominator’s nomination application. On 25 June 2024, the nominator filed a discontinuance of proceedings in this Court with the result that there is no current application for judicial review in this Court in respect of the Tribunal’s decision to refuse the Nominator’s nomination.
This Court is bound by the decision of the full Federal Court in Singh. It is a matter for the Federal Court, on appeal, to determine whether or not Singh, is incorrectly decided.
Applying the current case law, the applicants have no standing to challenge the nomination decision. Further, in the current factual circumstances, it would be futile to remit the matter back to the Tribunal, as the Tribunal would be required to make the same decision.
Accordingly, the application for judicial review must be dismissed.
The Court will hear from the parties in relation to the position of costs for the interlocutory application brought by the Minister for summary dismissal, which was refused by Registrar Cummings, and the substantive application before myself.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 29 January 2025
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