Song v Minister for Home Affairs

[2018] FCCA 3187

FEDERAL CIRCUIT COURT OF AUSTRALIA

SONG & ANOR v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3187

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Temporary Business Entry (Class UC) visas – whether the Tribunal was correct to hold that there was not an approved nomination at the time of hearing before the Tribunal – no arguable case of jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), cl. 457.223

First Applicant:	JIHWANG SONG
Second Applicant:	SOJIN YOU

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1585 of 2018

Judgment of: Judge Street

Hearing date: 5 November 2018

Date of Last Submission: 5 November 2018

Delivered at: Sydney

Delivered on: 5 November 2018

REPRESENTATION

Counsel for the Applicant: Ms F McNeil

Solicitors for the Applicant: Turner Coulson Immigration Lawyers

Counsel for the Respondents: Ms S He

Solicitors for the Respondents: Mills Oakley

ORDERS

1. This proceeding will be heard concurrently with proceedings SYG 1292/2018.

2. Grant leave to the applicant to rely upon the amended application filed 29 October 2018.

3. The amended application is dismissed.

4. The applicants pay the first respondent’s costs fixed in the amount of $3,667.00.

DATE OF ORDER: 5 November 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1585 of 2018

JIHWANG SONG

First Applicant

SOJIN YOU

Second Applicant

And

MINISTER FOR HOME 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”) made on 23 May 2018 affirming a decision of the delegate not to grant the applicants Temporary Business Entry (Class UC) visas.

2. The first applicant applied for the visa on 1 September 2015 and the second applicant was included as a member of the family unit. On 7 April 2016, the delegate refused the grant of the visa on the basis that the first applicant was not the subject of an approved nomination.

3. On 27 April 2016, the first applicant lodged an application for review to the Tribunal. By letter dated 5 March 2018, the Tribunal wrote to the applicants inviting them to attend a hearing. The applicants appeared on that date.

4. The Tribunal identified the requirements of cl 457.223(4)(a) of the Migration Regulations 1994 (Cth) (“the Regulations”). The Tribunal found that the requirements of that clause were not met following the hearing and affirmed the decision under review.

The grounds

1. The grounds in the amended application are as follows:

   1. In circumstances where:

   - the decision of the Tribunal to affirm the decision of the delegate of the Minister for Immigration to refuse to approve the nomination of Cleansurance Australia Pty Ltd under s.140GB of the Migration Act 1958 (Cth) (Cleansurance Decision) was affected by jurisdictional error in that it adopted an unduly narrow and legally erroneous approach to the construction of Regulation 2.72 and 2.73 of the Migration Regulations 1994 (Cth) such that the Tribunal failed to discharge its statutory review obligation under s348 of the Migration Act 1958 (Cth);

   - the Cleansurance Decision was accordingly no decision at all (Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 at [ 51]); and

   - the Cleansurance Decision formed the basis for the Tribunal's decision to affirm the delegate's decision in relation to the First and Second Applicants; it follows that the decision of the Tribunal in relation to the First and Second Applicants was itself affected by jurisdictional error.

   Particulars

   (a) In considering the criteria for approval under Regulation 2.72 and the process for nomination under Regulation 2.73, at paragraph [60] of its reasons in the Cleansurance Decision, the Tribunal considered that the regulation "refers to only to the 6-digit ANZSCO code which related to the occupation Web Administrator and no the 4-digit code for the unit group of ICT Support Technicians”.

   (b) The Tribunal misconstrued the ANZSCO description of the appellant's nominated occupation of "Web Administrator", confining its attention in determining the content of the nominated occupation to the text under ANZCO code 313113 Web Administrator without reference to the whole ANZSCO description, which included the content under the heading Minor Group 313 ICT and Telecommunications Technicians and Unit Group 3131 ICT Support Technicians.

   (c) This approach was inconsistent with the principles expressed in Talha v Minister for Immigration and Border Protection [2015] FCAFC 115 and Pasricha v Minister for Immigration and Border Protection [2017] FCA 779 and gave rise to jurisdictional error.

   2. In circumstances where:

   - the Cleansurance Decision was affected by jurisdictional error in that it was legally unreasonable; and

   - the Cleansurance Decision was accordingly no decision at all (Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 at [51]); and

   - the Cleansurance Decision formed the basis for the Tribunal's decision to affirm the delegate's decision in relation to the First and Second Applicants; it follows that the decision of the Tribunal in relation to the First and Second Applicants was itself affected by jurisdictional error.

   Particulars

   (a) In determining whether a position is genuine under Regulation 2.72(10)(f), the Tribunal is required to undertake a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the sponsor.

   (b) The Tribunal's finding at paragraph [61] of the Cleansurance Decision that the "application is contrived to secure a favourable migration outcome for the nominee", was made further to a finding at paragraph [54] that "The Tribunal does not accept that it is economical to employ full-time a web administrator in a relatively small company''.

   (c) This finding was legally unreasonable in circumstances where:

   a. The Tribunal had accepted that the organization chart for Cleansurance Australia Pty Ltd dated December 2015 showed nine employees and 100 subcontractors (paragraph 47);

   b. financial information about Cleansurance Australia Pty Ltd indicated that the Cleansurance Australia Pty Ltd had annual sales and income of over $2 million; and

   c. the evidence before the Tribunal indicated Cleansurance Australia Pty Ltd had replaced its point of sale (POS) technology system with web-based technology to manage its sales database (CB 506).

2. The amended application alleges jurisdictional error on the basis that the decision of the Tribunal that determined whether there was an approved nomination was of itself the jurisdictional error. This case has been heard concurrently with the challenge by the applicant for the approval of the nominated position.

3. Ms McNeil of counsel appeared on behalf of the applicant candidly and properly conceded that the two grounds in the amended application cannot succeed if, in fact, the applicant fails in the matter being heard concurrently. That application has failed.

4. Further, the Court notes that on the evidence before the Tribunal, the Tribunal was correct to hold that there was not an approved nomination at the time of hearing before the Tribunal and whilst it may be that a Court would take into account that a Tribunal’s decision that exceeds jurisdiction in respect of a nominated approval is no decision at all, the applicant needed a positive approval. The absence of a valid decision did not of itself demonstrate jurisdictional error in any event in respect of the proceedings the subject of this application. No jurisdictional error as alleged in the amended application is made out in respect of the decision of Tribunal that affirmed the decision refusing to approve the nomination for the reasons just published by the Court in that case.

Conclusion

1. Independently of those reasons, the application was doomed to failure because there was no approved nomination as found by the Tribunal.

2. Accordingly, the amended application is dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 7 December 2018