Yap v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1190
•19 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Yap v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1190
File number(s): SYG 1341 of 2020
SYG 1485 of 2020Judgment of: JUDGE ZIPSER Date of judgment: 19 November 2024 Catchwords: MIGRATION – Judicial review application – decision of Administrative Appeals Tribunal affirming decision to refuse subclass 457 (Temporary Work (Skilled)) visa – where sponsor’s visa nomination application refused – whether nominee had standing to challenge decision relating to nominator’s application for approval as a standard business sponsor – whether remittal futile – application dismissed – costs ordered Legislation: Migration Act 1958 s 45, s 140GB, s 476, s 479, s 486C
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 2.05(3)(a), r 13.01, r 13.02(1), r 13.06(1)(c), r 272, r 272(10)(aa)
Migration Regulations 1994 (Cth) reg 5.19, cl 187.233(1) of Schedule 2, cl 457.223(4) of Schedule 2
Cases cited: Lee v Minister for Immigration and Citizenship [2007] FCAFC 62; (2007) 159 FCR 181
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105; (2017) 253 FCR 267
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of hearing: 30 October 2024 Place: Parramatta In SYG 1341 of 2020 Applicant: No appearance Counsel for the Respondents: Mr J Barrington Solicitor for the Respondents: HWL Ebsworth In SYG 1485 of 2020 Applicants: Second Applicant by video link Counsel for the Respondents: Mr J Barrington Solicitor for the Respondents: HWL Ebsworth ORDERS
SYG 1341 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: Y K LINING PTY LTD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
19 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent is changed to “Minister for Immigration and Multicultural Affairs”.
2. The applicant pay the first respondent’s costs fixed in the amount of $5,859.80.
ORDERS
SYG 1485 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SIEW FUN YAP
First ApplicantKIAT HONG LEE
Second ApplicantZHEN TAO ALSTON LEE
Third ApplicantZHEN SHENG LEE
Fourth ApplicantZHEN YE LEE
Fifth ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
19 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent is changed to “Minister for Immigration and Multicultural Affairs”.
2. The application is dismissed.
3.The first and second applicants pay the first respondent’s costs fixed in the amount of $8,371.30.
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
Before the Court are two applications for judicial review, pursuant to s 476 of the Migration Act 1958 (Act), of decisions of the Administrative Appeals Tribunal (Tribunal). One application was lodged by Y K Lining Pty Ltd (Employer) (Employer’s Judicial Review Application) and sought review of a decision of the Tribunal dated 28 April 2020 which affirmed a decision of a delegate of the first respondent who refused to approve the Employer’s nomination for a subclass 457 (Temporary Work (Skilled)) visa under s 140GB of the Act and r 2.72 of the Migration Regulations 1994 (Cth) (Regulations). The other application was lodged by Siew Fun Yap (Nominee) and members of her family (Nominee’s Judicial Review Application) and sought review of a decision of the Tribunal dated 15 May 2020 which affirmed a decision of a delegate of the first respondent who refused to grant the Nominee and her family members a subclass 457 (Temporary Work (Skilled)) visa.
For reasons explained below:
(a)It has become unnecessary to determine the Employer’s Judicial Review Application because, between the date of hearing in this Court on 31 October 2024 and the date of this judgment, the registry of this Court has accepted for filing a notice of discontinuance lodged by the Employer on 25 October 2024.
(b)The Nominee’s Judicial Review Application is dismissed.
FACTUAL BACKGROUND
The Employer was a plastering company. The director of the company is Choon Keong Yap. The Nominee, Siew Fun Yap, is Choon Keong Yap’s sister. The second applicant in the Nominee’s Judicial Review Application is the Nominee’s husband. The third, fourth and fifth applicants are the children of that marriage.
Employer
On 10 November 2017, the Employer applied under s 140GB of the Act for approval of a nomination of the Nominee for a position with the Employer in the nominated occupation of “Contract Administrator”.
On 20 July 2018, a delegate of the first respondent refused to approve the nomination on the basis that the Employer did not satisfy reg 2.72(10)(aa) of the Regulations.
On 9 August 2018, the Employer applied to the Tribunal for review of the delegate’s decision.
On 26 February 2020, the Tribunal invited the Employer to attend a hearing before it on 13 March 2020. The Employer appeared before the Tribunal on the day of the scheduled hearing, which was held in conjunction with the hearing of the Nominee’s application to the Tribunal (Joint Tribunal Hearing).
On 28 April 2020, the Tribunal affirmed the delegate’s decision not to approve the nomination under s 140GB of the Act.
Nominee
On 15 November 2017, the Nominee applied under s 45 of the Act for a subclass 457 (Temporary Work (Skilled)) visa, including her husband and children as secondary applicants to that application. Within that application, the Nominee provided the details of the Employer as the sponsoring employer.
On 3 October 2018, a delegate of the first respondent refused to grant the visa on the basis that the Nominee did not satisfy cl 457.223(4)(a) of Schedule 2 to the Regulations.
On 18 October 2018, the Nominee applied to the Tribunal for review of the delegate’s decision.
On 13 March 2020, the Nominee attended the Joint Tribunal Hearing.
On 30 April 2020, the Tribunal, after having affirmed the delegate’s decision in respect of the Employer’s application on 28 April 2020, wrote to the Nominee to invite her to comment on adverse information, being that there was no evidence before the Tribunal of an approved nomination in respect of the Nominee. The Nominee did not respond to this invitation.
On 15 May 2020, the Tribunal affirmed the decision of the delegate not to grant the Nominee the visa.
TRIBUNAL’S DECISIONS
Decision dated 28 April 2020 concerning Employer
In light of developments in the Employer’s Judicial Review Application in October 2024, it is not necessary to consider the Tribunal’s decision dated 28 April 2020 concerning the Employer’s application for approval of a nomination in any detail.
Decision dated 15 May 2020 concerning Nominee
The Tribunal noted that cl 457.223(4)(a) in Schedule 2 to the Regulations specified as a criterion for a subclass 457 visa that there is an approved nomination of an occupation relating to the visa applicant by a standard business sponsor.
The Tribunal observed that, in light of the Tribunal’s decision dated 28 April 2020 concerning the Employer’s application for approval of a nomination, the nomination application made by the Employer in relation to the Nominee was not approved, and there was no evidence before the Tribunal of an approved nomination relating to the Nominee. For these reasons, cl 457.223(4)(a) was not met, and the Tribunal was required to affirm the delegate’s decision not to grant the Nominee the visa.
PROCEEDINGS IN THIS COURT
On 18 June 2020, the Nominee filed an application in this Court which commenced the Nominee’s Judicial Review Application. The application contained the following grounds and particulars (as written):
1.The Tribunal erred in law by illogically or irrationally forming a subjective jurisdictional fact under s 65(1) of the Migration Act 1958. The Tribunal reached the conclusion that it is not satisfied that the First Applicant meets cl 457.223(4)(a) of Schedule 2 of the Migration Regulations 1994 (“The Regulations”) based on a prior decision which is affected by jurisdictional error.
Particulars
a. On 28 April 2020, the Tribunal made a decision against Y K Lining Pty Ltd to affirm the decision of the delegate of the Minister made on 20 July 2018 to refuse to approve a nomination of an occupation for a Subclass 457 visa under s. 140GB of the Migration Act 1958 and r.2.72 of the Migration Regulations 1994 (“the First Decision”).
b. On 15 May 2020, the Tribunal made a decision against the Applicants to affirm the decision of the delegate f the Minister made on 3 October 2018 to refuse to grant the Applicants Temporary Business Entry (Class UC) Subclass 457 visas (“the Decision”).
c. The statutory criteria considered by the Tribunal to make the Decision is cl 457.223(4)(a) of Schedule of the Regulations which requires an approved nomination of an occupation relating to the Applicants by a standard business sponsor that has not ceased.
d. At paragraphs [7] and [8] of the Tribunal’s statement of reasons (“the Reasons”), the Tribunal mentions the combined hearing of this matter and the nomination application regarding Y K Lining Pty Ltd on 13 March 2020 and the First Decision made.
e. At paragraph [12] of the Reasons, the Tribunal concludes that there is no evidence of an approved nomination of an occupation relating to the Applicants as a result of the First Decision.
f. On 3 June 2020, an Application Form and Affidavit were filed to the Federal Circuit Court by Y K Lining Pty Ltd against the Respondents in relation to the Frist Decision made by the Tribunal (File No. SYG1341/2020). It is submitted that the First Decision is affected by jurisdictional error.
g. The Tribunal relies on the Frist Decision which is affected by jurisdictional error and wrongfully finds that cl 457.223(4)(a) of Schedule 2 of the Regulations is not met and that the visas should not be granted to the Applicants under s 65(1) of the Migration Act 1958.
On 10 November 2020, the Employer, after commencing the Employer’s Judicial Review Application in this Court in June 2020, filed an amended application. The amended application contained the following grounds and particulars (as written):
1.The Tribunal failed to properly interpret and apply r 2.72 of the Migration Regulations 1994.
Particulars
•The statutory criteria mainly considered by the Tribunal to make the Decision is r 2.72(10)(f) of the Migration Regulations 1994 (“Regulations”) which requires hat the position associated with the nomination occupation must be genuine.
•The nominated occupation was “Contract Administrator” as described in the ANZSCO Code No. 511111.
•The Tribunal did not set out the ANZSCO description for the nominated position and did not assess the genuineness of the position through having regard to the ANZSCO criteria.
2.The Tribunal improperly exercised the power by failing to take relevant consideration into account and taking irrelevant considerations into account.
•The Tribunal was concerned about the genuineness of the position simply because it did not believe that a full-time contract administrator was required by the nominator.
•The ANZSCO position description itself did not include such a requirement. Thus, whether the nominated position was full-time or part-time is irrelevant.
•The Tribunal did not address the duties set out in the description for the nominated position in the context of the ANZSCO position description which is a relevant consideration under r 2.72(10)(f) of the Regulations.
•Even if the issue of whether a full-time position was required by the Applicant is a relevant consideration, the Tribunal failed to consider the following relevant factors before making the decision:
•The visa conditions of the nominee, Ms Siew Fun Yap and relevant circumstances since 2017;
•The actual workload of the Applicant’s employees including the work assigned to each employee and their respective work capacity and ability;
•The latest financial performance of the business at the time of the hearing;
•The continuance of the personal issues of the Director, Mr Yap.
3.The Tribunal’s exercise of power in the decision-making process was so unreasonable that no reasonable person could have so exercised the power.
Particulars
•As mentioned above, the Tribunal gave too much weight to the irrelevant consideration and no weight to the relevant consideration;
•As mentioned above, the Tribunal failed to make necessary inquiries to find out if the Applicant did not need a full-time contract administrator, which will render the decision invalid.
On 10 November 2020, the lawyer on the record for the Employer and Nominee filed a written submission in each proceeding.
On 3 September 2024, the Court made procedural orders, including that the Employer’s Judicial Review Application and Nominee’s Judicial Review Application be listed for a concurrent hearing on 28 November 2024.
On 9 October 2024, the lawyer on the record for the Employer and Nominee filed a notice of withdrawal as lawyer in each proceeding.
Shortly afterwards, the solicitor for the first respondent informed the Court that the Nominee’s husband was in immigration detention. As a result, the Court brought forward the hearing date for both proceedings to 30 October 2024 and made a procedural order in each proceeding that the applicant may file and serve any further submission or evidence no later than 5 working days before the hearing. The applicants did not take up this opportunity in either proceeding.
On 25 October 2024, the Employer lodged a notice of discontinuance.
At the time of commencement of the hearing of the two proceedings on the morning of 30 October 2024, the Employer’s notice of discontinuance had not yet been “accepted for filing by the Registry Manager and sealed with the seal of the Court or marked with the stamp of the Court”: see r 2.05(3)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) and therefore the document, although lodged, had not yet been “filed” within the meaning of r 2.05(3). Since the Employer’s notice of discontinuance had not yet been filed, there was a hearing of both proceedings on the morning of 30 October 2024.
In the Employer’s Judicial Review Application, there was no appearance by or on behalf of the Employer. In the Nominee’s Judicial Review Application, the Nominee’s husband appeared by video link from a detention centre. The Nominee’s husband did not speak English. An interpreter between English and Cantonese was in the court room during the hearing. An effort was made to ensure that the husband understood communications in English during the hearing, and that the husband had an opportunity to make oral submissions on matters which arose at the hearing. There was no appearance by the Nominee at the hearing.
Jonathan Barrington of counsel appeared by video link for the first respondent in both proceedings.
Following the hearing, on the afternoon of 30 October 2024 the Employer’s notice of discontinuance was accepted for filing within the meaning of r 2.05(3) of the Rules.
CONSIDERATION OF EMPLOYER’S JUDICIAL REVIEW APPLICATION
If the Registry Manager had not accepted the Employer’s notice of discontinuance for filing by the date of judgment in this proceeding, the Court would have, at the request of Mr Barrington at the hearing on 30 October 2024, dismissed the Employer’s Judicial Review Application under r 13.06(1)(c) of the Rules because the Employer was absent. Since the Employer’s notice of discontinuance has now been accepted for filing, it is not necessary for the Court to make this order.
Whether by filing a notice of discontinuance or not attending the hearing on 30 October 2024, the Employer chose not to prosecute the Employer’s Judicial Review Application to conclusion.
CONSIDERATION OF NOMINEE’S JUDICIAL REVIEW APPLICATION
Standing
The grounds in the judicial review application filed by the Nominee indicate that the Nominee, to establish jurisdictional error in the decision of the Tribunal dated 15 May 2020 concerning the Nominee, must establish jurisdictional error in the decision of the Tribunal dated 28 April 2020 concerning the Employer. The written submission filed by the Nominee’s lawyer on 10 November 2020 is to similar effect.
The first respondent contends that the Nominee and her husband do not have standing to challenge a decision of the Tribunal concerning the Employer. The first respondent relies on the analysis of O’Sullivan J (with whom Raper J agreed) in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123 (Singh 2023).
There are some differences between the background facts in Singh 2023 and the background facts in the present matter. In particular, in Singh 2023 the visa applicant applied for a subclass 187 Regional Sponsored Migration Scheme visa; cl 187.233(1) in Schedule 2 to the Regulations stated that a criterion for the visa was that “the position to which the application relates is the position nominated in an application for approval …” and “the Minister has approved the nomination”; and the employer applied to the Minister for approval of the nomination under reg 5.19 of the Regulations. In contrast, in the present matter, the visa applicant applied for a subclass 457 Temporary Work (Skilled) visa; cl 457.223(4) in Schedule 2 to the Regulations stated that a criterion for the visa was that “a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act”; and the employer applied to the Minister for approval of the nomination under s 140GB of the Act. Thus, these aspects of the legislative provisions in Singh 2023 and the present matter are not identical. A second difference is that in Singh 2023 the employer proceeded to conclusion with a judicial review application in the Federal Circuit Court, although did not appeal to the Federal Court against the judgment of the Federal Circuit Court dismissing that judicial review application. In the present matter, the employer commenced a judicial review application in this Court, but then took steps to discontinue the application before a judgment was delivered in respect of the application.
Despite the differences referred to in the above paragraph, the reasoning of O’Sullivan J (with whom Raper J agreed) in Singh 2023, which principally turned on the construction of ss 479 and 486C of the Act, appears to apply equally in the present matter. In Singh 2023 at [86], O’Sullivan J also relied on “the time-sensitivity of …” applications for approval of nominations evident from reg 5.19(4) of the Regulations. There is a similar time-sensitivity of applications for approval of nominations evident from reg 2.72 of the Regulations.
Although Charlesworth J in Singh 2023 considered that the visa applicant in that matter had standing to contend in a judicial review proceeding that there was a jurisdictional error in the Tribunal’s decision concerning the employer, this Court is bound by the majority in Singh 2023. It follows that the Nominee and her husband do not have standing to proceed with the Nominee’s Judicial Review Application where the grounds rely on establishing jurisdictional error in the Tribunal’s decision dated 28 April 2020 concerning the Employer.
For the above reasons, the Nominee’s Judicial Review Application must be dismissed.
Futility
Mr Barrington contended that, even if the Nominee and her husband have standing, the Nominee’s Judicial Review Application is futile such that, even if there was a jurisdictional error in the Tribunal’s decision dated 28 April 2020 concerning the Employer, the Court should refuse to grant relief on this basis. Two issues arise in considering the question of futility as follows.
First, Mr Barrington relied on Singh v Minister for Immigration and Border Protection [2017] FCAFC 105; (2017) 253 FCR 267 (Singh 2017). Singh 2017, like Singh 2023, concerned the legislative scheme relating to a subclass 187 Regional Sponsored Migration Scheme visa. Mortimer J, with whom Jagot and Bromberg JJ agreed, stated at [82] that “the refusal of [the employer’s] nomination by the Minister, and the absence of any merits review decision overturning it, is fatal to the [visa applicant’s] visa application” and therefore, “even if error had been established [in a decision of the Tribunal concerning the visa application] remitter to the Tribunal would be futile”. As partially explained in paragraph 33, there are some differences between the legislative scheme relating to subclass 187 visas and the legislative scheme relating to subclass 457 visas. For this reason, and in circumstances where the matter was not fully argued at the hearing on 30 October 2024, the Court will not consider this issue further.
Second, whether or not the reasoning in Singh 2017 applies equally to the legislative scheme concerning subclass 457 visas, there is no evidence before the Court one way or the other as to whether the Employer continues to want to employ the Nominee. In light of the passing of time since May 2020 and the Employer’s decision in the Employer’s Judicial Review Application in October 2024 to discontinue the application, it is not evident that the Employer continues to employ, or wants to employ, the Nominee. If the Employer does not continue to employ, or want to employ, the Nominee, the Nominee’s Judicial Review Application may be futile. Since neither the Employer nor Nominee attended the hearing on 30 October 2024, it was not possible for the Court to discuss this issue with the Employer or Nominee. Also, before the Court would exercise its discretion to refuse relief on the ground of futility, it must be quite clear that such reconsideration is or would be futile: see Lee v Minister for Immigration and Citizenship [2007] FCAFC 62; (2007) 159 FCR 181 at [46]-[53].
Since the Nominee’s Judicial Review Application must be dismissed because the Nominee and her husband do not have standing, it is not necessary to consider this matter further.
Substantive application
Even if the Nominee and her husband had standing to seek to persuade the Court that there was a jurisdictional error in the decision of the Tribunal dated 28 April 2020 concerning the Employer, the Nominee and her husband could not succeed in this Court unless they persuaded the Court that there was a jurisdictional error in the decision.
The Court has briefly reviewed the decision of the Tribunal dated 28 April 2020 and the materials filed on behalf of the Nominee in the Nominee Judicial Review Application.
It is not evident there is a jurisdictional error in the Tribunal’s decision dated 28 April 2020. Since the Nominee’s Judicial Review Application must be dismissed because the Nominee and her husband do not have standing, it is not necessary to consider this matter further.
COSTS
Employer’s Judicial Review Application
As explained above, on 25 October 2024 the Employer lodged a notice of discontinuance, and on 30 October 2024 the notice of discontinuance was accepted for filing. It follows that the Employer has discontinued the proceeding within the meaning of r 13.01 of the Rules. Rule 13.02(1) states that if a party discontinues an application, another party may apply for costs. Mr Barrington applied for costs at the hearing on 30 October 2024. Mr Barrington sought the scale amount of $5,859.80 – see item 4 in Div 2 of Part 2 in Schedule 2 to the Rules. Based on information about costs in each proceeding provided by Mr Barrington to the Court at the hearing, the Court is satisfied that the making of a costs order in this amount in the Employer’s Judicial Review Application is appropriate. The Court will make this order.
Nominee’s Judicial Review Application
For reasons explained above, the Nominee’s Judicial Review Application is dismissed. Mr Barrington sought costs in the scale amount of $8,371.30 – see item 3 in Div 1 of Part 2 in Schedule 2 to the Rules. Based on information about costs in each proceeding provided by Mr Barrington to the Court at the hearing, the Court is satisfied that the making of a costs order in this amount in the Nominee’s Judicial Review Application does not involve double counting and is appropriate.
The third, fourth and fifth applicants are children of the first and second applicants. Following the hearing, the Court invited submissions from the parties as to the applicants against whom a costs order should be made if the application is dismissed. The first respondent indicated that costs were only sought against the first and second applicants. It is appropriate that, upon the Nominee’s Judicial Review Application being dismissed, the first and second applicants pay the first respondent’s costs in the scale amount. An order will be made accordingly.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 19 November 2024
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