YE and Ors v Minister for Immigration and Anor

[2020] FCCA 1093

FEDERAL CIRCUIT COURT OF AUSTRALIA

YE & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1093

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Regional Employer Nomination (Class RN) visa – whether the Tribunal misapplied the relevant law – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), reg 1.15C, cl 187.222 of sch 2

First Applicant: GEMAO YE

Second Applicant: MEIQIN CHEN

Third Applicant: BINGHONG YEN

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2948 of 2019

Judgment of: Judge Street

Hearing date: 7 May 2020

Date of Last Submission: 7 May 2020

Delivered at: Sydney

Delivered on: 7 May 2020

REPRESENTATION

The First Applicant appeared in person via Microsoft Teams

Solicitors for the Respondents: Ms K Dunlop via Microsoft Teams
Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicants pay the first respondent’s costs fixed in the amount of $3,600.00.

Date of order: 7 May 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2948 of 2019

GEMAO YE

First Applicant

MEIQIN CHEN

Second Applicant

BINGHONG YEN

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 11 October 2019 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the first and second applicants Regional Employer Nomination (Class RN) visas (“Employer Nomination visas”).

2. The first applicant and second applicant are citizens of China, being husband and wife, and the third applicant is their son. The third applicant was not in Australia at the time of the application and the Tribunal found that it had no jurisdiction in relation to the third applicant.

3. The applicants applied for the Employer Nomination visas on 26 October 2018. On page 14 of the application form, the first applicant was asked questions as to whether he had undertaken an English language test within the last 36 months. The first applicant answered “No”. On the application form, the first applicant was also asked if he had functional language ability and he answered “No”.

4. On 8 July 2019, the Delegate found that the applicants failed to meet the criteria for the grant of the Employer Nomination visas. The Delegate identified the requirements of cl 187.222 of sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) and reg 1.15C of the Regulations in respect of the definition of “Competent English” and the relevant tests score or passports permitted under the relevant instrument being IMMI 15/005.

5. On 20 July 2019, the applicants applied to the Tribunal for review of the Delegate’s decision. By letter dated 20 September 2019, the Tribunal invited the applicants to attend a hearing on 9 October 2019. The first applicant attended the hearing to give evidence and present arguments.

6. The Tribunal in its reasons identified the background to the review application. The Tribunal identified the requirements of cl 187.222 of sch 2 of the Regulations, as well as the relevant regulation and instrument in relation to competent English or the holding of a specified passport.

7. It is apparent that, at the hearing, the Tribunal raised with the first applicant that he had not undertaken the necessary English language tests. The Tribunal also raised with the first applicant that he did not hold one of the passports falling within the instrument. Accordingly, the Tribunal found that the first applicant did not meet cl 187.222(a) of sch 2 to the Regulations.

8. The Tribunal also confirmed that the first applicant had not completed five years of full-time study in a secondary or higher education institution. Accordingly, the Tribunal found that the first applicant also did not meet the criteria in cl 187.222(b) of sch 2 to the Regulations.

9. The Tribunal found that, as the first applicant did not meet the criteria for the Employer Nomination visa, the second applicant as his wife did not meet the criteria.

10. The Tribunal found that the Delegate’s decision must be affirmed.

11. The Tribunal identified that the third applicant was not in Australia at the time of the application. The Tribunal found that it had no jurisdiction in relation to the third applicant.

Before the Court

1. These proceedings were commenced on 13 November 2019.

2. On 5 December 2019, a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

3. At the commencement of the hearing, the Court explained to the first applicant the nature of the hearing and the first applicant confirmed that he understood the nature of the hearing as explained by the Court.

4. From the bar table, the first applicant suggested that there had been a change in relation to the Employer Nomination visa requirements after he arrived in Australia. It is apparent from the application for the Employer Nomination visa that the applicant was told of the requirements in respect of competent English when he applied for the Employer Nomination visa.

5. Nothing said by the first applicant from the bar table identifies any jurisdictional error.

Ground in the Application

1. The ground in the application is as follows:

   1. Circumstances not anticipated by relevant legislation; the application of relevant legislation leads to unfair or unreasonable results in a particular case.

2. The proposition that the circumstances in relation to a requirement for competent English were not anticipated by the relevant legislation is without substance. The Employer Nomination visa application and the relevant legislation identified mandatory criteria that the first applicant had to meet in relation to competent English or the holding of an appropriate passport. The law was correctly identified by the Tribunal.

3. The Tribunal raised with the first applicant his want of competent English or a relevant passport. The requirement in respect of competent English was a mandatory requirement where the first applicant did not hold a relevant passport. The adverse decision was open to the Tribunal and there is no substance in the assertion that it was unfair or unreasonable. The first applicant did not meet the mandatory criteria that the Tribunal correctly identified.

4. The Tribunal also correctly identified that the third applicant was not one in respect of whom the Tribunal had jurisdiction. On one view, the third applicant should have been removed from these proceedings, however, no such order has been sought by the first respondent.

5. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 7 May 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Date: 19 June 2020