Xie v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 154
Federal Circuit and Family Court of Australia
(DIVISION 2)
Xie v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 154
File number(s): SYG 1539 of 2019 Judgment of: JUDGE D HUMPHREYS Date of judgment: 3 March 2023 Catchwords: MIGRATION – Administrative Appeals Tribunal – Temporary Business Entry (Class UC) visa – whether Tribunal erred by not granting adjournment – whether Tribunal misapplied the Migration Regulations – whether there was jurisdictional error. Legislation: Migration Act 1958 (Cth) ss 140GB, 359A, 359B, 359C, 504
Migration Regulations 1994 (Cth) reg 2.72 2.75, 4.17
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018
Cases cited: BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
KC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 4
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Salh v Minister for Immigration [2019] FCCA 2096
Spence v Queensland [2019] HCA 15
VAAD v Minister for Immigration and Indigenous Affairs [2005] FCAFC 117
Division: Division 2 General Federal Law Number of paragraphs: 65 Date of last submission/s: 16 February 2023 Date of hearing: 16 February 2023 Place: Parramatta Counsel for the Applicants: Mr Jones Counsel for the Respondents: Mr Bevan SC and Ms Hooper ORDERS
SYG 1539 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: XIAOJUN XIE
First Applicant
YANLAN GUO
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE D HUMPHREYS
DATE OF ORDER:
03 March 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application be dismissed.
3.The Applicant to pay the First Respondent’s costs as agreed or assessed.
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 HUMPHREYS
Introduction
On 14 September 2013, the first applicant applied for a subclass 457 visa. The second and third applicants, being the first applicant’s wife partner and child, form part of a family unit of the first applicant.
On 24 October 2014, a nomination of an occupation of massage therapist relating to the applicant was made by a standard business sponsor. This nomination was approved. By virtue of reg 2.75(2) of the Migration Regulations 1994 (Cth) (“the Regulations”) that approved nomination ceased on 24 October 2015.
On 16 March 2015, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicants a subclass 457 visa. The applicants then sought merits review at the Administrative Appeals Tribunal (“the Tribunal”).
The Court notes that a decision of the Tribunal, dated 8 May 2015, was quashed by consent by this Court (differently constituted) on 12 December 2017, and remitted for redetermination by the Tribunal.
On 6 May 2019, the Tribunal wrote to the applicant’s noting that the subclass 457 visa category has been ‘repealed and closed to new applicants.” The potential consequence of the repeal of subclass 457 visas was made clear in the letter, that being that the Tribunal may find the applicant is “not able to meet criteria relevant to the grant of a subclass 457 visa on the basis that you are not the subject of an approved nomination by a standard business sponsor”. A response was sought by 20 May 2019, being the prescribed time set out in s 359B(1) of the Migration Act 1958 (Cth) (“the Act”) and reg 4.17(4) of the Regulations.
The Tribunal records at paragraph 10 of the decision record that it hoped to discuss the contents of this letter with the applicant at the review hearing, which was scheduled for 7 May 2019. However, the applicant failed to attend the hearing and no reason for his non-attendance was provided to the Tribunal.
On 21 May 2019, a day after the requisite timeframe set in the letter, the applicant’s representative contacted the Tribunal seeking extension of time to respond to the s 359A letter. The request was on the basis that the representative had only received instructions from the applicant that day. An extension of time for a period of two weeks was sought. The Tribunal considered this request but refused to grant it for the reasons it set out at paragraph 12 of the decision. The Tribunal also records that the applicant’s representative was advised that any evidence provided before the decision was handed down would be considered. No further evidence was forthcoming.
On 27 May 2019, the Tribunal determined to affirm the decision under review. The applicant now seeks judicial review of the second Tribunal decision.
The Tribunal Decision
The Tribunal decision is relatively short. After setting out the procedural background outlined above, the Tribunal noted at paragraph 15 that cl 457.223(4)(a) of Schedule 2 to the Regulations required that there be an approved nomination of an occupation relating to the applicant by a standard business sponsor that had not ceased, in order for the visa to be granted.
The Tribunal noted that the information before it indicated that the last nomination of which the applicant was subject ceased on 24 October 2015.
The Tribunal noted at paragraph 17 that it had written to the applicant pursuant to s 359A of the Act, outlining its concerns that the applicant was not the subject of an approved nomination. It noted as follows:
Furthermore, the Tribunal noted that the Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 which commenced on 18 March 2018, repealed and replaced the criteria for nominations relating to proposed Subclass 457 (Temporary work (Skilled)) visa applications, and that the Subclass 457 (Temporary Work (Skilled)) visa was also repealed and closed to new applications.
At paragraph 18 and 19, the Tribunal noted no further information had been provided which indicated the applicant was the subject of an approved nomination by a standard business sponsor. For these reasons, the requirements of cl 457.223(4) of Schedule 2 to the Regulations were not met. As a result, the Tribunal determined to affirm the decision not to grant the applicants their visas.
Grounds of Judicial Review
The grounds of judicial review relied upon are set out in an amended Initiating Application filed with the Court on 16 September 2019. They are as follows:
1. The Tribunal made a jurisdictional error by failing to take into account a mandatory relevant consideration being the utility of granting an adjournment to the Applicant’s case on the merits for the visa.
2. The Tribunal made a jurisdictional error by failing to consider an adjournment without first enquiring into the utility of granting an adjournment to the Applicant’s case on the merits for the visa.
3. For the purposes of grounds 1 and 2, the Tribunal erred by applying the Migration Regulations 1994 (Cth) (Regulations) when read with the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (amending Regulations):
a.On the face of the Regulations and the amending Regulations, the Tribunal did not make a jurisdictional error as the Applicant could not obtain a further nomination in relation to the 457 visa (see reg 2.72(1)(b)(i) of the Regulations and item 6704(6) in Sch 1 to the amending Regulations; Salh v Minister for Immigration [2019] FCCA 2096 at [42]);
b.However, reg 2.72(1)(b)(i) of the Regulations was invalid for inconsistency with s 140GB of the Migration Act 1958 (Cth) (Act);
c.Section 140GB of the Act required a nomination to be made in respect of a person who is an applicant or a proposed applicant for a visa (s 140GB(1)(a)) or in relation to an occupation generally (s 140GB(1)(b)) (see, eg, Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182 at [47]);
d.Section 140GB(1)(a) of the Act enables the Regulations to prescribe visas in relation to an applicant or a proposed applicant;
e.Reg 2.72(1)(b)(i) of the Regulations was inconsistent with s 140GB of the Act because it prescribed the 457 visa but restricted that prescription to the holder of the 457 visa;
f.There was no other relevant power to prescribe. In particular, there was no power under s 140GB(2)(b) of the Act as it concerned the criteria for approval of a nomination rather than the subject of the nomination which was dealt with by s 140GB(1) of the Act.
The Applicant’s Submissions
As will be apparent, the applicant’s argument centred upon the assertion that reg 2.72(1)(b)(i) of the Regulations is invalid and the first applicant could indeed obtain a fresh nomination for the type of visa sought.
Counsel for the applicant, in oral submissions, conceded that in order for the applicant to succeed, the applicant needed to succeed on 3 cumulative issues.
First, did the Tribunal decide to refrain from adjourning the proceedings and proceed with the review. Second, was a material factor in the decision not to adjourn, an assumption that there was a want of scope for a fresh nomination to be made. Third, that reg 2.72(1)(b)(i) of the Regulations is invalid and that the Court should strike out parts of the regulation which took it beyond power.
No specific written submissions were provided as to grounds 1 and 2. Instead, the applicant concentrated his argument on the validity of reg 2.72(1)(b) of the Regulations.
It was submitted that subclass 457 visas were abolished and replaced by the subclass 482 visas via the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (“the amending regulations”). However, the subclass 457 visa criteria, including cl 457.223(4), were preserved in relation to applications made before that time (including the present case).
It was submitted an essential element of the Tribunal decision was that reg 2.72(1)(b)(i) of the Regulations is valid. Thus, there was no scope for the applicant to seek a fresh nomination: (see; Salh v Minister for Immigration [2019] FCCA 2096 (“Salh”) per Cameron J).
Salah concerned the rejection of a document evidencing the applicant’s skill and experience as the qualification could not be verified due to the closure of the university.
Judge Cameron found it would be futile to remit the matter as the applicant’s situation would be no better than it was at that time. However, Cameron J found at [39] that the application of reg 2.72 of the Regulations only applied to those persons who currently hold a subclass 457 visa.
It was submitted that if there was the ability of the applicant to seek a fresh nomination then the futility found by Cameron J in Salah would not apply.
It was submitted that reg 2.72(1)9b)(i) of the Regulations was not a valid exercise of its enabling power, being s 140GB of the Act, on the proposition that regulations “cannot rise higher than their source, must be authorised by their [enabling] legislation and must not be inconsistent with it”.
Section 140GB of the Act relevantly enables two classes of regulations to be made. First, there may be regulations for a “Visa of a prescribed kind (however described)” under s 140GB(1)(a) of the Act. Secondly, there may be regulations prescribing criteria for the approval of a nomination under s 140GB(2)(b) of the Act. Neither provision authorises regulations limiting a nomination to a person who already holds the subclass 457 visa.
Section 140GB(1)(a) of the Act limits the function of the regulations to prescribing the “kind” of visa. However, there was a limit to the function of the regulations. It may only prescribe the kind with respect to the nomination of “an applicant or proposed applicant” for the visa. It is not permitted to do so with respect to the holder of a visa. Nor is it permitted to restrict the kinds of “applicant or proposed applicant” to say, repeat applications of an earlier visa.
It was submitted it was clear that s 140GB(1)(a) of the Act does not support the making of reg 2.72(1)(b)(i) of the Regulations. Nor does it find any support in s 140GB(2)(b) of the Act. Thus, if an applicant or proposed applicant for a visa may be the subject of a nomination under s 140GB91)(a), then provisions under s 140GB(2)(b) of the Act cannot deny scope to approve a nomination merely because the subject is an applicant or a proposed applicant rather than the holder of a visa. Section 140GB(1)(a) of the Act would be frustrated if a person recognised as an eligible subject of a nomination could be rendered effectively ineligible under s 140GB(2)(a) of the Act.
Section 140GB(1) of the Act distinguishes between two situations. First, there may be a nomination naming a particular person, who by s 140GB(1)(a) of the Act, must be an applicant or proposed applicant for a visa. Second, there may be a nomination not by reference to a particular person but simply by reference to a proposed occupation under s 140GB(1)(b) of the Act, with the criteria for approval of a nomination concerning the role rather than a specific person prescribed under s 140GB(2)(b) of the Act.
It is not possible for regulations addressing the second situation to overlap with, and escape the boundaries of, the first situation. They may provide the criteria for approving a nomination of a proposed occupation with no mention of a particular person. However, they cannot extend to a nomination mentioning a person and excluding them unless they are the holder of visa contrary to s 140GB(1)(a) of the Act. An attempt to do so by the regulations would be inconsistent with the enabling legislation, by detracting from the two distinct situations provided for by s 140GB(1)(a) of the Act, impeding the operation with respect to an “applicant proposed applicant”.
It was submitted that the Court should sever the words “a holder of” from reg 2.72(1)(b) of the Regulations such that the regulation would refer to a nominee for a subclass 457 visa so as to bring it within power and preserve its validity: (see; Spence v Queensland [2019] HCA 15 at [87] per Kiefel CJ, Bell, Gageler and Keane JJ).
The first Respondents Submission
It was submitted that the one substantive ground which seems to be pressed, being the invalidity asserted in relation to the regulations, concerns the applicant’s contention that the Tribunal fell into error by failing to consider an adjournment (that was never sought) without inquiring (which there was no obligation to do) into the “utility of an adjournment” on the basis of an argument as to the alleged invalidity of a regulation (that was never articulated to the Tribunal).
It was submitted that the asserted invalidity is hypothetical such that the applicant is, in effect, asking the Court to give an advisory opinion.
In relation to ground one, it was submitted that in order to show that any consideration is relevant in the sense of the decision-maker being obliged to take it into account, in making a decision under statute, that consideration must be either express or it must be implied from the “subject matter, scope and purpose” of the legislation: (see; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40).
There is nothing to support the contention put forward by the applicant that the “utility of granting an adjournment to the applicant’s case on the merits of the visa” is a mandatory consideration.
In relation to ground two, it was submitted that the ground was cast as a failure to consider an adjournment on a specific basis, namely “without first enquiring to the utility of granting adjournment to the applicant’s case on the merits for the visa”. It was submitted that properly understood, ground three is not independent of ground two. Rather, it purports the set out an argument (never articulated to the Tribunal) of the invalidity of reg 2.72 of the Regulations that is said to support the asserted utility of the adjournment.
It was submitted the gist of the pleaded ground is an alleged failure to consider exercising a discretionary power. It is for the applicants to establish, first, the factual foundation for the conclusion the Tribunal did fail to consider exercising the discretion (see; VAAD v Minister for Immigration and Indigenous Affairs [2005] FCAFC 117 at [45]) and, secondly that there was a jurisdictional error in failing to consider exercising the discretion: (see; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [67]).
It was submitted that the applicants cannot discharge the onus to prove any non-consideration of the discretion to adjourn the route review generally or for the postulated purpose: (see; BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29 at [40]). Here, the Tribunal was never asked to take such a course.
The Tribunal was never asked for an adjournment to permit the opportunity for the making of a new nomination by an unidentified employer, who may first have to be approved as a relevant sponsor, on the basis of an unformulated and unarticulated argument concerning the alleged invalidity of at least reg 2.72 of the Regulations and, if either the sponsorship approval or the nomination were unsuccessful, then time for any subsequent merits review (if available) and consequential judicial review that the unidentified employer might the perhaps pursue in respect of the decision to refuse sponsorship approval and, eventually the nomination. It was submitted this was mere speculation reinforced by hindsight reasoning.
Further, no sources is identified for the asserted obligation to enquire, and none is apparent. It is well-settled there is no general duty to enquire about matters not raised, and nor can it be said that the asserted enquiry concerned a critical fact, the existence of which is easily ascertained: (see; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (“SZIAI”) at [24]-[25]).
It was submitted it was incorrect for the applicant to argue that it was part of the Tribunal’s reasoning that the applicants were not able to obtain such a nomination and the Tribunal did not delay or adjourn the proceeding on the supposition they could not obtain a fresh nomination in any event.
First, the Tribunal gave reasons for why it proceeded to make the decision it did. The Court is limited to these reasons in order to discern whether they reveal an evident and intelligible justification for the exercise of that power. These reasons do not refer to the amending regulations nor to futility. They do not say, for example, that the operation of the amending regulations would render the grant of an extension of time futile and therefore it was refused.
Secondly, and crucially, the validity of reg 2.72(1)(b)(i) of the Regulations forms no part of the reasoning of the substantive decision. The substantive decision turned on the simple proposition that, as at the date of the Tribunal’s decision, there is no information to indicate that the applicant had an approved nomination and occupation relating to himself by a standard business sponsor.
It was submitted that this case was not “a natural extension” of KC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 4 (“KC”) as the facts and that matter were materially different. In that case, Mr KC had applied for subclass 457 Visa which was refused because his first sponsor did not have an approved nomination for him. During his merits review, his new employer, a college, made a nomination application which a delegate refused and the college sought merits review. Mr KC asked the Tribunal to defer his review pending the college’s merits review application. The Tribunal declined. Later, in affirming the decision to refuse the college’s nomination decision, the Tribunal reasoned that the college did not meet the requirements of reg 2.75(5) of the Regulations because Mr KC did not hold, and was unable to be granted a subclass 457 visa: (see; KC at [32]).
Finally, it was submitted the applicant’s argument concerning the validity of reg 2.72(1)(b)(i) of the Regulations does not arise for determination in this application for writs of certiorari and mandamus. No declaratory relief was claimed, and the applicant’s argument is hypothetical. It does not proceed by reference to establish facts with respect to an actual nomination application or decision is rather framed in the abstract by reference to the circumstances that have not occurred might never happen. It is akin to seeking an advisory opinion from the Court, which is not appropriate.
It was submitted the claim for severance was made and no specific claim for relief in respect of the alleged invalidity was made and that the scope of the proposed severance was of itself uncertain.
For the avoidance of doubt, it was submitted that the first respondent’s position is that the regulation is valid. It was submitted that neither s 140GB(1) and (2) is relevant regulation-making power. The power to make regulations is conferred by s 504 of the Act. Certain visa criteria may be described, as permitted under s 140GB(4) of the Act, the satisfaction of which is necessary for the approval of a nomination , as required by s 140GB(2)(b).
Section 140GB(1) of the Act is not a section that limits the power to prescribe criteria for the approval of a nomination. It simply identifies who is able to make a nomination application and who or what they may nominate. The section does not confer any form of anticipatory approval of the nomination application; that nomination application must otherwise satisfy the detailed criteria validly prescribed in the balance of reg 2.72 of the Regulations. The Act does not evince an intention to be prescriptive as to the criteria for the approval of a nomination; the regulations contained detailed provisions which do that.
It was submitted as to severance, the applicants suggested severance is unclear, and appears to be inconsistent with what was sought to be achieved by the amending regulations.
Consideration
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 (“Djokovic”) at [17] the task of a Court conducting judicial review was described in this manner:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
Ground 1 is an assertion that the Tribunal failed to take into account a consideration, being the utility of an adjournment. The factual circumstances are that the Tribunal sent the first applicant a s 359A letter, inviting a response to information it possessed, that that he was not the subject of an approved nomination. The first applicant did not appear at the hearing scheduled for 7 May 2019 and did not reply to the s 359A letter with any response within the stipulated time frame.
One day after the stipulated time frame expired, being 21 May 2019, a representative sought further time to make a response. The Tribunal considered but refused such an extension and proceeded, pursuant s 359C(2) of the Act, to make a decision on the review without taking any further action to obtain the applicant’s views.
The Court notes that no submissions were advanced in relation to Ground 1. The Court agrees with the first respondent’s submission that there is nothing in the wording of the section that either explicitly or implicitly supports the contention that there is a mandatory consideration in whether to grant an adjournment that includes ‘the utility of granting such an adjournment on the merits of the case’. Section 359C(2) of the Act makes it clear that it is open to the Tribunal to proceed without any further adjournment.
The Tribunal considered its options but determined to proceed. Given the facts of the matter, including the failure of the applicant to appear at the scheduled hearing, the decision to proceed is hardly surprising and was an option that was reasonably open to the Tribunal.
There was nothing legally unreasonable in the Tribunal determining the matter on the information that was before it and not granting an adjournment. No adjournment for the purposes of fresh nomination was sought. This case can be distinguished from that of KC as there was no other fresh nomination in existence at the time the Tribunal made its decision. Ground 1 has no merit.
Ground 2 asserts that the Tribunal failed to consider an adjournment without first enquiring as to the utility of granting an adjournment on the applicant’s case on the merits of the visa.
At paragraph 12 of the decision record, the Tribunal considered the material contained in the applicant’s representatives letter 21 May 2019. This letter sought an extension of time for a period of two weeks in submitting a response on behalf of the client to the s 359A letter. It did not seek an adjournment of the hearing or that the hearing be reconvened, noting that the hearing which had been set for 7 May 2019 had already occurred, which the applicant failed to appear at.
The Tribunal further noted that, as at the date of the decision, being 27 May 2019, no further information had been received from the applicant. As noted by the first respondent, once the requisite time period had expired with respect to the s 359A letter, the Tribunal had no power to grant a further extension of time to respond. In Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40 at [46]-[48]:
However, in M at [52] Tracey J said that had it been necessary to do so, he would have held that the Tribunal could not enlarge time under s 359B(4) after the expiry of the date prescribed in the s 359A letter.
In coming to that view, Tracey J observed that s 359B(4) is cast in the present tense. That is to say, the subsection contemplates a person who "is to respond to an invitation" within the stipulated time. We agree with Tracey J that this indicates that the power to grant an extension is lost since the prescribed time has expired. See also Usman v Minister for Immigration [2005] FMCA 966 at [44].
That view is re-enforced by the provisions of s 359C(2). If an applicant does not give the comments or response "before the time for giving them has passed" the Tribunal’s power to make a decision without taking further action to obtain the applicant’s views is enlivened. This is a further indication that the Tribunal’s discretion to extend time is spent if a request is made after the expiry of the prescribed period. The effect of this subsection, when read with s 360(2), s 360(3) and s 363A is that the gate closes on an applicant who fails to respond to a letter under s 359A within the prescribed time. There is simply no discretion to extend the time to respond.
In the circumstances of this particular case, the Court is satisfied there was no general or specific requirement for the Tribunal to consider an adjournment for a purpose that was not articulated before it by the applicant, or even sought, for the purpose of the applicant to have an opportunity of making a new nomination from some other employer.
Further, the duty imposed on the Tribunal is to review and not a duty to enquire: (see; SZIAI at [25]).
The Tribunal was perfectly entitled to proceed to determine the matter as it did, based on the information that was before it. Ground 2 has no merit.
Ground 3 asserts that for the purposes of Grounds 1 and 2, the Tribunal erred by applying the Regulations when read with the amending regulations.
In his opening oral submissions, Counsel for the applicant conceded that ground three was cumulative upon the Court being satisfied that the Tribunal first decided to refrain from adjourning proceed with the review and in so doing, a material fact was the want of scope for a fresh nomination on the assumption that reg 2.72 was valid.
The Court finds the fact, this was not as a case. The Tribunal quite properly considered whether not to adjourn the matter but determined not to on the basis that, even though it invited, the representative of the applicant to provide information which would be taken into account, no information was forthcoming. It was never put to the Tribunal that reg 2.72 of the Regulations was not valid and the Tribunal made no determination in relation to the validity of that regulation.
At its highest, the representative of the applicant stated to the Tribunal that he needed more time to consider whether the applicant should withdraw the proceeding in the light of the complicated legal issues in respect of the change on subclass 457 visas.
The Court agrees with the submission of the first respondent, that in effect, the Court is being asked to provide an impermissible advisory opinion in relation to the validity of a regulation, for which no declaration of invalidity was contained or sought within the pleadings. On this basis, ground three has no merit. As set out in Djokovic, the Court must consider the matter based on the complaints raised.
CONCLUSION
Accordingly, the application must be dismissed.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 3 March 2023
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