Ye v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FCA 73
•2 February 2023
FEDERAL COURT OF AUSTRALIA
Ye v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 73
Appeal from: Ye & Ors v Minister for Immigration and Anor [2020] FCCA 1093 File number: NSD 594 of 2022 Judgment of: NICHOLAS J Date of judgment: 2 February 2023 Legislation: Migration Act 1958 (Cth) ss 338(7A) and 347(3A)
Migration Regulations 1994 (Cth) Sch 2
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 23 Date of hearing: 2 February 2023 Counsel for the Appellants: The first appellant appeared in person with the assistance of an interpreter and on behalf of the second and third appellants Solicitor for the First Respondent: Ms E Warner Knight of Australian Government Solicitor Counsel for the Second Respondent: The second respondent submitted save as to costs ORDERS
NSD 594 of 2022 BETWEEN: GEMAO YE
First Appellant
MEIQIN CHEN
Second Appellant
BINGHONG YEN
Third Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
NICHOLAS J
DATE OF ORDER:
2 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to Minister for Immigration, Citizenship and Multicultural Affairs.
2.The appeal be dismissed.
3.The first and second appellants pay the first respondent’s costs of the appeal as taxed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from Transcript)
NICHOLAS J:
This is an appeal against a judgment of the Federal Circuit Court of Australia (as it then was) given on 7 May 2020. By his judgment, the primary judge dismissed the appellants’ application for judicial review of a decision of the second respondent (“the Tribunal”) made on 11 October 2019 affirming the decision of a delegate of the first respondent (“the Minister”) not to grant the first and second appellants’ Regional Employer Nomination (Class RN) visas.
The appellants were not legally represented before the primary judge or at the hearing of the appeal. The first appellant who appeared on his own behalf and on behalf of the other appellants was assisted by an interpreter before the Tribunal and at the hearing of the appeal. Before the primary judge the first appellant appeared via Microsoft Teams.
The Tribunal’s reasons for decision notes that the class of visa applied for by the appellants, at the time of their applications, contained only one subclass, ie. Subclass 187 (Regional Sponsored Migration Scheme). The appellants’ visa application was lodged on 26 October 2018. As the Tribunal recorded, criteria for a Subclass 187 visa are set out in Pt 187 of Sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).
The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need only satisfy the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the “Common criteria” as well as the criteria of one of two alternative visa streams referred to as the Temporary Residence Transition stream and the Direct Entry stream.
The Tribunal’s reasons note that the first appellant, Mr Ye, was seeking the visa in the Temporary Residence Transition stream to work in a position with his nominator and current employer.
Paragraph 187.222 of Sch 2 to the Regulations requires that, at the time the visa application is made, the primary applicant in the Temporary Residence Transition stream must either:
(a)have “competent English”; or
(b)be in a class of persons specified by the Minister in a legislative instrument.
The term “competent English” is defined in r 1.15C of the Regulations. A person has “competent English” if they:
·undertook a specified language test in the three years preceding the visa application and achieved a specified score; or
·hold a specified passport.
The relevant tests, scores and passports for these purposes are specified in IMMI 15/005.
The class of persons specified by the Minister for the purposes of paragraph 187.222(b) of the Regulations is set out in IMMI 18/045. Item 10 of IMMI 18/045 provides that, for the purposes of paragraph 186.222(b) and, relevantly, paragraph 187.222(b) of Sch 2 to the Regulations for Subclass 186 and Subclass 187 visas in the Temporary Residence Transition stream, the following class of persons is specified as exempt from the “competent English” requirement:
Persons who, at the date of visa application, have completed a minimum of five years of full-time study in a secondary or higher education institution where all the tuition was delivered in English.
The delegate refused to grant the appellants’ visas on the basis that Mr Ye did not meet the requirements of paragraph 187.222 of Sch 2.
It is apparent from the Tribunal’s reasons that at the hearing Mr Ye did not dispute that he had not provided either the Department or the Tribunal with evidence of him having undertaken any of the specified English language tests. Nor did he dispute that he holds a Chinese passport and that China is not one of the countries specified in IMMI 15/005.
The Tribunal’s reasons record that at the hearing Mr Ye also confirmed that he did not complete at least five years of full-time study in a secondary or higher education institution where all the tuition was delivered in English. He did not dispute that the requirements of paragraph 187.222(b) of Sch 2 were not met.
The Tribunal found that Mr Ye did not satisfy either paragraph 187.222(a) or paragraph 187.222(b) of Sch 2 and that, consequently, the requirements of paragraph 187.222 of Sch 2 were not met.
As to Mr Ye’s wife, the second appellant, the Tribunal noted that her application was based on being a member of the family unit of a person who met the primary criteria for grant of the relevant visa. As her husband did not meet the primary criteria, the delegate’s decision to refuse her application was also affirmed.
With respect to the third appellant’s application, the Tribunal noted that the third appellant was Mr Ye’s son who was not in Australia and outside the migration zone at relevant times. The Tribunal concluded that it did not have jurisdiction in respect of the third appellant: see ss 338(7A) and 347(3A) of the Migration Act 1958 (Cth).
The appellants’ application for judicial review asserted, in substance, that the appellants’ circumstances were “not anticipated by the relevant legislation” and that the application of the relevant legislation to the appellants lead to “an unfair or unreasonable result”.
In his reasons for judgment, the primary judge drew attention to various procedural orders providing for the filing by the appellants of an amended application, affidavit evidence and submissions. His Honour further noted that no such documents had been filed. His Honour had regard to statements made by the appellant suggesting that there had been some change made to the visa requirements after his arrival in Australia. However, his Honour also noted that it was apparent from the visa application completed by the first appellant that he was told of the requirements in respect of competent English at the time of making the application. His Honour noted that nothing was said during the course of the hearing that identified any jurisdictional error on the part of the Tribunal.
His Honour considered each of the grounds of review to which I have referred. It is apparent that his Honour was satisfied that the appellants did not meet the mandatory criteria that the Tribunal correctly identified. His Honour further noted that the Tribunal correctly concluded that it did not have any jurisdiction in relation to the proceeding in so far as it had been brought by the third appellant.
In this Court the appellants relied on following three grounds of appeal:
1.The Federal Circuit Court erred by failing to give the appellants' case a fair and just trial and the hearing was done in a perfunctory way remotely.
2.The Federal Circuit Court erred by failing to find that the second respondent (AAT) made findings affected by legal unreasonableness.
3.The Federal Circuit Court erred by failing to find that the second respondent (AAT) did not properly consider the overall weight of the appellants' evidence, and that in view of that, the appellants' case may warrant an consideration of humanitarian discretion or referral to Ministerial Intervention (no reflection or mention of such thinking process can be seen in the AAT decision).
There is no substance to any of these grounds.
There is no basis for finding that the appellants did not receive a fair hearing before the primary judge. It is apparent from his Honour’s reasons that the first appellant was given an opportunity to give evidence and make submissions. The only evidence filed by the appellants in support of their application was an affidavit of the first appellant that recited the grounds of review to which I have referred. Neither the evidence nor the submissions engaged with the point that was decided against the appellants by the Tribunal. Nothing that appears to have been said by the first appellant at the hearing before the primary judge or on appeal grapples with the clear and unchallenged findings of the Tribunal that he did not meet the requirements of the visa for which he had applied.
The Tribunal’s decision has not been shown to be affected by any jurisdictional error and was in my view correct. The primary judge correctly found that the appellants had failed to establish that the Tribunal’s decision was affected by jurisdictional error.
The appeal will be dismissed. The first and second appellants must pay the Minister’s costs.
Orders accordingly.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas. Associate:
Dated: 8 February 2023
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