Su v Minister For Immigration and ANOR and Goldwell Trading Pty Ltd v Minister For Immigration and ANOR
[2019] FCCA 1629
•13 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SU v MINISTER FOR IMMIGRATION & ANOR and GOLDWELL TRADING PTY LTD v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1629 |
| Catchwords: MIGRATION – Judicial review – whether retrospective application – where the occupation of “Importer & Exporter” was no longer recognised by the Migration Regulations – whether regulation commenced before the date of registration – dismissed. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.48(2) Migration Act 1958 (Cth), s.140GB Migration Regulations 1994 (Cth), r.2.72 Legislation Act 2003 (Cth), s.12(2)) |
| Cases cited: Australian Coal & Shale Employees Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161 Toowoomba Foundry Pty Ltd v Commonwealth (1945) 71 CLR 545 Ignatious v Minister for Immigration and Multicultural Affairs [2004] FCA 1395 |
| Applicant: | ZHIXUAN SU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 489 of 2017 |
| Applicant: | GOLDWELL TRADING PTY LTD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 490 of 2017 |
| Judgment of: | Judge Young |
| Hearing date: | 7 June 2019 |
| Date of Last Submission: | 7 June 2019 |
| Delivered at: | Darwin |
| Delivered on: | 13 June 2019 |
REPRESENTATION
| Counsel for the Applicant in ADG489/2017: | Mr Jones |
| Solicitors for the Applicant in ADG489/2017: | In person |
| Counsel for the Respondents in ADG489/2017: | Ms Milutinovic |
| Solicitors for the Respondents in ADG489/2017: | Sparke Helmore |
| Counsel for the Applicant in ADG490/2017: | Mr Jones |
| Solicitors for the Applicant in ADG490/2017: | In person |
| Counsel for the Respondents in ADG490/2017: | Ms Milutinovic |
| Solicitors for the Respondents in ADG490/2017: | Sparke Helmore |
ORDERS
IN PROCEEDINGS ADG 489 of 2017
That an extension of time be granted to the time of filing of the application.
That the applicant have leave to amend the date of the decision subject to review to 18 October 2017.
That the application be dismissed.
That the applicant pay 25% of the first respondent’s costs as taxed according to the relevant costs schedule or as agreed
Notation: Order 3 has been added pursuant to Rule 16.05(2)(h) of the Federal Circuit Court Rules 2001 to reflect “That the application be dismissed”.
IN PROCEEDINGS ADG 490 of 2017
That an extension of time be granted to the time of filing of the application.
That the application be dismissed.
That the applicant pay the first respondent’s costs as taxed according to the relevant costs schedule or as agreed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
ADG 489 of 2017
| ZHIXUAN SU |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
ADG 490 of 2017
| GOLDWELL TRADING PTY LTD |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These applications (ADG489/2017 and ADG490/2017) were heard together. They are applications for judicial review of two decisions of the Administrative Appeals Tribunal (“the Tribunal”) concerning an application under section 140GB of the Migration Act (“the Act”) by the corporate applicant, Goldwell Trading Pty Ltd (“Goldwell”), for the Minister’s approval of a nomination of the individual applicant, Mr Su, for a s 457 visa. The proposed occupation of Mr Su was "Importer or Exporter".
On 22 September 2016 the Minister’s delegate refused to approve the nomination on the ground that the nomination was not “genuine”. The delegate found that the relevant employment position was created to facilitate the stay of Mr Su in Australia. Mr Su is the son of the director of Goldwell.
On 18 October 2017, in a review of the delegate’s decision, the Tribunal rejected Goldwell’s nomination because, at the time of the Tribunal hearing, the nominated occupation "Importer or Exporter" was no longer approved or recognised under the Migration Regulations and, accordingly, a requirement in s 140GB of the Act, that the prescribed criteria be satisfied, was not met. The prescribed criteria were those set out in Migration Regulation 2.72 which relevantly required that the nominated occupation be recognised and that there be an appropriate code for that occupation.
In simple terms, the occupation "Importer or Exporter" was recognised and provided with an appropriate code at the time of the application for the approval of the nomination of Mr Su for the visa but was not recognised at the time of the hearing by the Tribunal.
The timeline is significant. On 11 March 2016 Goldwell nominated Mr Su for the visa. The occupation "Importer or Exporter" was then an approved occupation under the relevant Migration Instrument, IMMI 16/059 (and previously IMMI 15/052).
However, on 1 July 2017 IMMI 16/059 was repealed and a new Migration Instrument, IMMI 17/060, commenced. This instrument did not recognise the occupation "Importer or Exporter" and there was no corresponding code for the occupation.
Clause 9(b) of IMMI 17/060 stated that
This instrument applies in relation to nominations of occupations:
(a) made on or after 1 July 2017; or
(b) made and not finally determined before 1 July 2017
regardless of whether, for a nomination in relation to an applicant for a visa, the application was made before, on or after 1 July 2017.
The phrase "finally determined" is defined in s 5(9) of the Act as
… when:
(a) a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7; or
(b) a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed; or
(c) [not relevant].
The Tribunal made its decision on 18 October 2017 and rejected the nomination because the nomination did not satisfy a criterion for approval under regulation 2.72, being the provision of the name of the occupation and its accompanying code specified in the applicable instrument in writing. IMMI 17/060 was the applicable instrument from 1 July 2017 and did not specify the occupation or provide its code. The applicant could not satisfy the prescribed criteria for the purpose of section 140GB.
The effect of the repeal of the previous instrument and the substitution of IMMI 17/060 on 1 July 2017 was to deprive the applicant of the opportunity to successfully nominate Mr Su for the occupation of "Importer or Exporter": something it was able to do until 1 July 2017 but not afterwards. The case of both applicants in this court was straightforward and the same. It was submitted that the substantial effect of the repeal of the previous instrument and the substitution of IMMI 17/060 was to deprive them of the prospect of a favourable outcome to the application. It was submitted that this fell within subsection 12(2) of the Legislation Act 2003 which provides as follows:
Restrospective application
A provision of a legislative instrument or notifiable instrument does not apply in relation to a person (other than the Commonwealth or an authority of the Commonwealth) if the provision commences before the day the instrument is registered, to the extent that as a result:
(a) the person's rights as at that day would be affected so as to disadvantage the person; or
(b) liability would be imposed on the person in respect of anything done or omitted to be done before that day.
The applicant submitted that the substantial effect of the commencement of IMMI 17/060 was retrospective, affecting the rights of both applicants to their disadvantage.
The respondent submitted that subsection 12(2) had no application because cl 9 of IMMI 17/060 stated that the instrument did not commence before the day it was registered but applied, relevantly, only to nominations not finally determined before 1 July 2017 or, in other words, only to applications that would be finally determined after that date.
The first respondent relied on Ignatious v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1395. In that case it was argued that a change in migration regulations was invalid because of s 48(2) of the Acts Interpretation Act which then provided:
A regulation, or a provision of regulations, has no effect if, apart from this subsection, it would take effect before the date of notification and as a result:
(a) the rights of a person (other than the Commonwealth or the authority of the Commonwealth) as at the date of notification would be affected so as to disadvantage that person….
Weinberg J held, relying on Australian Cole & Shale Employees Federation v Aberfield Coalmining Co Pty Ltd (1942) 66 CLR 161 and Toowoomba Foundry Pty Ltd v The Commonwealth (1945) 71 CLR 545, that the relevant regulation upon its proper construction was not one that "would take effect before the date of notification”. Accordingly, it was not invalidated.
In Toowoomba Latham CJ considered the effect of section 48(2) and, referring to Aberfield, said at 568 – 569:
… it was held that the section did not avoid a provision in a regulation merely because it affected existing rights prejudicially; a regulation which was not expressed to take effect from a prior date was not affected by the section, even though it deprived a person of existing rights…
In this case, while the existing rights of the applicants were prejudicially affected by the commencement of IMMI 17/060, the regulation was not expressed to take effect from a date prior to its commencement. In my view, section 12(2) and section 48(2) have the same effect and Goldwell’s case is indistinguishable from the one based on section 48(2) in Ignatious and must be dismissed for the same reasons.
Mr Su’s application to the Tribunal was dismissed because he failed to appear. His counsel argued that if the substantial point argued on behalf of Goldwell was successful the dismissal of Mr Su’s application should be seen as affected by jurisdictional error. He did not advance any other ground of jurisdictional error on behalf of Mr Su and did not rely on the ground outlined in the application which, in any case, does not appear to be meritorious. In the result it is not necessary to consider the point as Goldwell has not succeeded. Mr Su’s application is dismissed as well.
Both applications required an extension of time pursuant to section 477 of the Act to be heard. Although I have dismissed both applications I am satisfied that Goldwell’s case merited argument even though it has not been successful. The Minister has not pointed to prejudice and the delay was a few days only. I will extend time in both cases to the time the applications were filed.
As the cases were argued largely as one it is inappropriate to make an order for two complete sets of costs. I will order that Goldwell pay the first respondent's costs and that Mr Su pay 25% of the first respondent’s costs as taxed according to the relevant costs schedule or as agreed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Young
Date: 13 June 2019
0