Wang v Minister for Home Affairs - [2018] FCCA 3416

FEDERAL CIRCUIT COURT OF AUSTRALIA

WANG & ORS v MINISTER FOR HOME AFFAIRS & ANOR

[2018] FCCA 3416

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of employer nomination visas – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.359A, 360

Migration Regulations 1994 (Cth)

Cases cited:

Ghori v Minister for Immigration [2011] FCA 759
Kabir v Minister for Immigration [2010] FMCA 132
Minister for Immigration v Li (2013) 297 ALR 225; [2013] HCA 18
Minister for Immigration v Singh [2014] FCAFC 1
Patel & Anor v Minister for Immigration & Anor [2015] FCCA 1502
SZBYR v Minister for Immigration [2007] HCA 26
Tin v Minister for Immigration [2000] FCA 1109

First Applicant:

QING WANG

Second Applicant:

DECAI YANG

Third Applicant:

QINGYUE YANG

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPAELS TRIBUNAL

File Number:

SYG 3992 of 2017

Judgment of:

Judge Driver

Hearing date:

26 November 2018

Delivered at:

Sydney

Delivered on:

26 November 2018

REPRESENTATION

The Applicants appeared in person

Solicitors for the Respondents:

Ms S Sangha of Mills Oakley

INTERLOCUTORY ORDERS

Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3992 of 2017

QING WANG

First Applicant

DECAI YANG

Second Applicant

QINGYUE YANG

Third Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPAELS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 24 November 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants permanent employer nomination visas. There are three applicants who are a mother (Ms Wang), her husband (Mr Yang) and their daughter. Background facts relating to this matter are set out in the Minister’s outline of legal submissions filed on 19 November 2018.
Ms Wang is a citizen of China who applied for an Employer Nomination (Subclass 186) visa on 10 April 2016 on the basis of her nomination for the position of Program or Project Administrator with “Computeck Pty Ltd” under the Temporary Residence Transition stream.[1] Mr Yang and Miss Yang were included as dependants in the visa application.[2]
[1] Court Book (CB) 1-16
[2] CB 3-7
It was a time of application requirement, contained in clause 186.222(a) and (b) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), that the applicant have “vocational English” or be “a person in a class of persons specified by the Minister in writing for this paragraph”.
“Vocational English” was defined in regulation 1.15B and relevantly provided that a person will have vocational English if that person either undertook a specified language test in the three…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 3416
Decision Date: 26 November 2018

CaseChat Overview and Summary

The applicant, Mr. Wang, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the refusal of his employer nomination visas. The Minister for Home Affairs was the respondent. The core of the dispute concerned whether the AAT had committed jurisdictional error in its handling of a show cause application made by Mr. Wang, which the AAT had dismissed interlocutorily.

The central legal issue before the Court was whether Mr. Wang had an arguable case that the AAT had engaged in jurisdictional error by dismissing his show cause application without providing him with an opportunity to respond. This required the Court to consider the nature of show cause notices in the context of migration decisions and the procedural obligations of the AAT when such notices are issued and subsequently challenged.

Justice Driver found that Mr. Wang had not established an arguable case of jurisdictional error. His Honour reasoned that the show cause notice issued to Mr. Wang was not a decision that could be challenged in the Federal Court under s 75(v) of the Constitution. Rather, it was a preliminary step in the decision-making process. The AAT's interlocutory dismissal of the application to set aside the show cause notice was not a final determination of Mr. Wang's visa application and did not, in itself, constitute jurisdictional error. The Court concluded that the AAT was entitled to proceed with its review of the primary decision without further engagement on the show cause notice at that stage.

The application for judicial review was dismissed.

Orders