Widjaja v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 324
•11 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Widjaja v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 324
File number(s): SYG 1478 of 2021 Judgment of: JUDGE ZIPSER Date of judgment: 11 March 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing temporary graduate visa – whether Trades Recognition Australia validly appointed as relevant assessing authority – meaning of ‘body’ - no jurisdictional error established – application dismissed. Legislation: Migration Regulations 1994 (Cth) reg 2.26B(1), Sch 2 cl 485.223(1), Sch 2 cl 485.224(1) Division: Division 2 General Federal Law Number of paragraphs: 24 Date of hearing: 27 February 2025 Place: Parramatta Solicitor for the Applicant: Mr C. Levingston of Christopher Levingston & Associates Counsel for the Respondents: Mr A. Hall Solicitor for the Respondents: Minter Ellison ORDERS
SYG 1478 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NICHOLAS SURYA WIDJAJA
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
11 MARCH 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent's costs in the amount of $11,980.00.
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 ZIPSER
INTRODUCTION
On 5 August 2021, the applicant filed an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 6 July 2021. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicant a Temporary Graduate (Class VC) (subclass 485) visa under s 65 of the Act.
For the reasons that follow, the application is dismissed.
RELEVANT LEGISLATION
Regulation 2.26B(1) of the Migration Regulations 1994 (Cth) (Regulations) provided at the relevant time:
Subject to subregulation (1A), the Minister may, by an instrument in writing for this subregulation, specify a person or body as the relevant assessing authority for:
(a) a skilled occupation; and
(b) one or more countries;
for the purposes of an application for a skills assessment made by a resident of one of those countries.
Clauses 485.223(1) and 485.224(1) of Schedule 2 to the Regulations provided at the relevant time:
485.223
(1)When the application was made, it was accompanied by evidence that the applicant had applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority.
485.224
(1)The skills of the applicant for the applicant’s nominated skilled occupation have been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation.
The “relevant assessing authority” at the time was Trades Recognition Australia (TRA).
FACTUAL BACKGROUND
On 27 August 2018, the applicant applied for a Temporary Graduate (Class VC) (subclass 485) visa.
On 7 June 2019, a delegate of the first respondent refused to grant the visa on the basis that the delegate was not satisfied the applicant met cl 485.224.
On 11 June 2019, the applicant applied to the Tribunal for review of the delegate’s decision.
On 12 May 2021, the applicant appeared before the Tribunal to give evidence and present arguments.
On 6 July 2021, the Tribunal affirmed the delegate’s decision not to grant the visa.
TRIBUNAL’S DECISION
The applicant provided evidence to the Tribunal that he had applied to TRA for a skills assessment in August 2018. The applicant stated that he had a ‘negative outcome’. The applicant acknowledged that he did not have an approved skills assessment and therefore could not satisfy the criteria for a subclass 485 visa.
In relation to cl 485.223, the Tribunal found that, when the visa application was made, it was not accompanied by evidence of an application for a skills assessment for the nominated skilled occupation by a relevant assessing authority, and therefore the applicant did not meet the requirements of cl 485.223.
In relation to cl 485.224, the Tribunal found that, since the applicant had not obtained a positive skills assessment from TRA, the applicant also did not meet the requirements of cl 485.224.
In those circumstances, the Tribunal affirmed the delegate’s decision.
PROCEEDINGS IN THIS COURT
Judicial review application and procedural orders
On 5 August 2021, the applicant filed in this Court an application for judicial review of the Tribunal’s decision (Application). The grounds are as follows (as written):
1. The decision of the Second Respondent made on 6 July 2021 to the effect that Clauses 495.223 and 485.224 were a requirement in the circumstances of this particular case caused the decision to be infected by jurisdictional error.
Particulars
(a)TRA has not been validly appointed as a "Relevant Assessing authority" as specified in the instrument made under regulation 2.26B of the Regulations (reg 1.03) as specified.
(b)TRA is not a legal entity, it has no registered business name, it has no ABN and no ACN.
(c)The cumulative effect of those defects is to render the requirements of Clauses 485.223 and 485.224 otiose in line with the settled authorities of Singh v Minister for Immigration and Citizenship. FMCA 145 at {65],Batra v Minister for Immigration & Citizenship (2013) 212FCR 84 at 85-86 [7]-[12]; Rafi v Minister for Immigration & Citizenship[2012] FMCA 1002 at [2],[4]
Following a period of inactivity, on 12 December 2024 the parties were notified that the matter was listed for hearing on 27 February 2025.
On 13 February 2025, the applicant filed a written submission. The nub of Mr Levingston’s argument was:
(a)A ‘body’ within the meaning of reg 2.26B(1) of the Regulations must have a legal personality.
(b)TRA did not have a legal personality, was therefore not a ‘body’ and was therefore not validly appointed as a ‘relevant assessing authority’.
(c)Since TRA was not validly appointed as a ‘relevant assessing authority’, the applicant was not required to satisfy cl 485.223 and cl 485.224 to obtain a subclass 485 visa.
On 25 February 2025, the first respondent filed a written submission which explained, in response to the ground in the Application, why TRA was a ‘body’ within the meaning of reg 2.26(1) and therefore was validly appointed. In light of events at the hearing on 27 February 2025, part of the first respondent’s submission is extracted below.
Hearing on 27 February 2025
At the hearing in this Court on 27 February 2025, Christopher Levingston, solicitor, appeared for the applicant. Anthony Hall of counsel appeared for the first respondent.
Mr Levingston accepted that the analysis in the first respondent’s written submission was correct, and TRA was a ‘body’ within the meaning of reg 2.26B(1) of the Regulations and validly appointed. However, Mr Levingston did not discontinue the proceeding or consent to a dismissal of the proceeding. Accordingly, it is necessary to consider, albeit briefly in light of Mr Levingston’s concession, the issue of statutory construction the subject of the Application.
CONSIDERATION
It is stated in the first respondent’s written submission at [17] and [20]-[24] (footnotes omitted):
17.The applicant argues that TRA is not a 'person' or 'body' capable of being specified as an assessing authority under regulation 2.26B of the Regulations, and that as a result, TRA was not validly appointed pursuant to regulation 2.26B, and he was therefore not required to satisfy clauses 485.223 and 485.224 in Schedule 2 of the Regulations.
…
20.The term 'body' is not defined in the Regulations or the Act. As such, ‘body’ in regulation 2.26B is to be interpreted in accordance with its ordinary meaning taking into account statutory context and purpose.
21.The ordinary meaning of ‘body’ is ‘a group of people with a common purpose or function acting as an organised unit’. The purpose of regulation 2.26B of the Regulations is to allow the Minister to specify an entity that will function as an assessment authority for skills assessments for nominated occupations for residents of certain countries in connection with applications for particular visas.
22.Notably, regulation 2.26B(1) uses the words ‘person or body’ (emphasis added). The word ‘person’ is commonly used to describe natural and corporate persons having legal personality. The word 'body' is used in contradistinction to the word 'person', indicating that it is not necessary for an entity to have legal personality in order to fall within the meaning of ‘body’.
23.Thus, it may be seen to have been a deliberate choice by Parliament to adopt a broad definition of the types of entities that could be specified as relevant assessing authorities for the purposes of regulation 2.26B of the Regulations. In particular, Parliament may be taken to have intended that a broad range of entities including both persons with legal personality and bodies without legal personality could be specified as assessing authorities under regulation 2.26B. In this regard, it is relevant that the Minister must not specify a person or body as an assessing authority (regulation 2.26B(1A)), unless the person or body has been approved as suitable by the Skills Assessment Minister (regulation 2.26B(1B)).
24.The Minister agrees with the applicant’s characterisation of TRA as a business unit within the Commonwealth Department of Employment and Workplace Relations. The ordinary meaning of body is plainly broad enough to include an administrative body such as TRA notwithstanding that it forms part of a Department of State and therefore part of the Commonwealth. It cannot have been intended an entity such as TRA is to be excluded from the definition of ‘body’ in regulation 2.26B simply because it is a business unit within a Commonwealth Department and is not separately established by legislation. While the indicia referred to by the applicant (Business Name, ACN, ABN etc) may be relevant to a natural or corporate ‘person’, they have no relevance to an administrative ‘body’ such as TRA. There are a wide variety of administrative bodies across the Commonwealth in comparable circumstances to TRA that would fall within the ordinary meaning of ‘body’.
Mr Levingston did not disagree with any part of this analysis.
Aided by the first respondent’s useful submission, I consider that, for reasons explained in the first respondent’s written submission, a “body” within the meaning of reg 2.26B(1) need not have a legal personality, and that TRA is a “body” within the meaning of reg 2.26B(1). It follows that the Application must be dismissed.
COSTS
Since the application is to be dismissed, it appears that the applicant must pay the first respondent’s costs. Mr Hall was not in a position to make submissions on quantum at the hearing. I will hear further submissions on costs at the delivery of judgment.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 11 March 2025
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