Zeng v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 714
•5 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Zeng v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 714
File number(s): ADG 208 of 2020 Judgment of: JUDGE CAMERON Date of judgment: 5 July 2024 Catchwords: MIGRATION – Application for extension of time to bring proceeding – Relevant considerations.
MIGRATION – Regional Sponsored Migration Scheme – nomination withdrawn – Refusal – Review of Administrative Appeals Tribunal decision.
Legislation: Migration Act 1958 (Cth) ss 474, 477
Migration Regulations 1994 (Cth) cl 187.233 sch 2
Cases cited: Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Division: General Number of paragraphs: 25 Date of hearing: 5 July 2024 Place: Adelaide Counsel for the Applicant: The applicant appeared in person by videoconference Solicitor for the First Respondent: Ms Q. Ren, HWL Ebsworth Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
ADG 208 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SUE ZENG
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
5 JULY 2024
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of $4,189.38.
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 CAMERON
INTRODUCTION
The applicant is a citizen of China who arrived in Australia in February 2017. On 6 December 2017, she lodged an application for a Regional Sponsored Migration Scheme (subclass 187) visa with what is now the Department of Home Affairs. To support her visa application, a nomination was lodged by her employer, JDN Group Pty Ltd, on the same date but on 18 October 2018, the nomination was withdrawn. On 2 January 2020, the applicant's visa application was refused by a delegate (Delegate) of the first respondent (Minister). The applicant applied to the second respondent (Tribunal) for a review of that departmental decision. She was unsuccessful before the Tribunal on 7 April 2020 and has applied to this Court for judicial review of the Tribunal's decision.
The applicant's application for judicial review was filed on 5 June 2020, outside the 35-day limitation period prescribed by the Migration Act 1958 (Cth) (Act) and the applicant has applied for an extension of time within which to bring this proceeding.
For the reasons which follow, the application for an extension of time will be refused and the application dismissed.
LEGISLATION
Section 477 of the Act provides the time limit which applies to proceedings for judicial review of the Tribunal's decisions in respect of which this Court has jurisdiction. At the time of the Tribunal's decision, it relevantly provided:
477 Time limits on applications to the Federal Circuit Court
(1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court of Australia specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
date of the migration decision means:
(a)in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 --the date of the written decision under that subsection; or
(b)in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 5--the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1); or
(c)in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 7--the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1); or
(ca)in the case of a migration decision made by the Immigration Assessment Authority--the date of the written statement under subsection 473EA(1); or
…
APPLICATION FOR AN EXTENSION OF TIME
Because the Tribunal's decision was dated 7 April 2020, the applicant had until 12 May 2020 to bring this proceeding. Because the application was not filed until 5 June 2020, it was brought 24 days out of time.
Application in writing citing reasons
The consequence of the application having been filed late is that the Court must consider the two questions posed by s 477(2) of the Act. The first of these is whether an application has been made to the Court for an extension of time. The application commencing this proceeding contained an application for an extension of time and set out the basis on which the applicant said an extension of time would be in the interests of the administration of justice. The initial criteria for the granting of an extension of time have therefore been satisfied.
Interests of the administration of justice
The second question posed by s.477(2) is whether it is in the interests of the administration of justice to extend time. In the circumstances of this case, that question will be determined by whether the applicant has provided a satisfactory explanation for her delay in commencing the proceeding and whether the allegations made in the substantive application for judicial review have sufficient merit that the Court should consider them at a trial. The assessment of the merits of the application for constitutional writs need not be limited to an impressionistic appreciation: Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604.
Although the absence of prejudice does not, in and of itself, justify the exercise of discretion by the Court, I do note that the Minister has stated in his written submissions that he would not suffer substantial prejudice if time were to be extended.
Satisfactory explanation for delay
In her application commencing this proceeding, the applicant stated that:
1.Because I did not read the Decision Record from Administrative Appeals Tribunal carefully, I didn’t know which court to appeal to.
2.I consulted this question to Administrative Appeals Tribunal, but they didn’t reply me
3.I didn’t know it was a Federal appeal until now.
In relation to the first of the grounds explaining delay advanced by the applicant, it should be noted that in the information sheet which accompanied the Tribunal's decision it was made clear that any application for judicial review had to be filed with this Court within 35 days. If the applicant had read the material that had been supplied to her she would have known, straightaway, that she had quite a limited period within which to apply for a review of the Tribunal’s decision.
The second element of the applicant's explanation appears to suggest that following receipt of the Tribunal's decision, she contacted it to ask some questions, but exactly what the conversation covered is unknown to the Court.
The final element of the applicant's explanation provides no adequate justification for the delay, given that if the applicant had read the notice which she had been sent with the Tribunal decision, she would have been aware that the application for judicial review would have to be made to this Court.
I am not satisfied that the applicant has provided a satisfactory explanation for the delay in commencing this proceeding.
Merits of the substantive application
In relation to the question of the merits of the substantive application, it should be noted that in proceedings for judicial review of a Tribunal decision, the Court cannot rehear the visa application underlying that decision. Its task is to determine whether the Tribunal's decision is affected by jurisdictional error, as that is the only basis upon which it can be set aside: s 474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, before the Court would consider it was in the interests of the administration of justice to extend time to bring a proceeding, it is necessary that an applicant demonstrate that his or her case has sufficient merit that the Court should consider it at a trial.
Legislation relevant to substantive application
Clause 187.233 of sch. 2 to the Migration Regulations 1994 (Cth) provided at all material times:
187.233
(1) The position to which the application relates is the position:
(a) nominated in an application for approval that seeks to meet the requirements of:
(i) subparagraph 5.19(4)(h)(ii); or
(ii) subregulation 5.19(4) as in force before 1 July 2012; and
(aa) in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); and
(b) in relation to which the declaration mentioned in paragraph 1114C (3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2) The person who will employ the applicant is the person who made the nomination.
(3) The Minister has approved the nomination.
(4) The nomination has not subsequently been withdrawn.
(4A) Either:
(a) there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or
(b) it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.
(5) The position is still available to the applicant.
(6) The application for the visa is made no more than 6 months after the Minister approved the nomination.
I note in this regard, that between the applicant's application for a visa and the Tribunal's determination, that provision was amended, but the amendments do not apply to this case.
Background facts
In the Minister's written submissions, Ms Zeng's relevant migration history was summarised in the following terms, which I adopt:
4. On 6 December 2017, the Applicant applied for the visa.
5. On 17 October 2018, the Applicant's sponsor notified the Department that the Applicant was no longer sponsored by the sponsor and that the sponsor wished to withdraw its sponsorship.
6. On 18 October 2018, the Department sent an email to the Applicant, attaching a letter which drew the Applicant's attention to the withdrawal of the nomination. The letter explained to the Applicant that the nomination submitted to the Department by the sponsor had been withdrawn such that her visa application could not be approved.
7. On 15 November 2018, the Applicant's sponsor notified the Department again that they had withdrawn the sponsorship.
8. Between November 2018 and April 2019, the Applicant engaged in extensive correspondence with the Department about the visa application and her immigration status.
9. On 4 December 2019, the Department sent an email to the Applicant, attaching a letter which explained that the nomination submitted to the Department by the sponsor had been refused such that her visa application could not be approved.
10. On 2 January 2020, a delegate of the Minister refused the visa on the basis that the Applicant did not satisfy cl 187.233 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). This was because the Applicant did not have an approved nomination with respect to her application.
11. On 3 January 2020, the Applicant applied to the Tribunal for review of the delegate's decision.
12. Between 22 and 27 March 2020, the Applicant submitted further materials in support of the application to the Tribunal.
13. On 7 April 2020, the Applicant appeared before the Tribunal to give evidence and present arguments.
(references omitted)
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal affirmed the decision of the Delegate not to grant the applicant a visa, based on the following findings and reasons:
8. The issue in the present case is whether at the time of this decision Mrs Zheng is the subject of a nomination approved by the Minister which has not been withdrawn.
9.Mrs Zheng considers she had been dealt with unlawfully and unfairly by her employer, her migration agent, the Department of Immigration and Australia. She says that she was not paid for work by her sponsor, who also then withdrew sponsorship of her. She said she had lodged a complaint with the Fair Work Commission, but then withdrew he complaint.
10. She said she does not have a nomination as she thought all employers would treat her badly and she was too anxious to try again. She has now returned to China and says she has been sick for months, and her parents are also unwell.
11. As acknowledged by Mrs Zheng, at the time of this decision she does not have a nomination that has been approved and has not been withdrawn.
Nomination of a position
12. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.
13. In addition, this criterion also requires that:
•the person who will employ the applicant is the person who made nomination
•the nomination has been approved and has not been subsequently withdrawn
•there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information
•the position is still available to the applicant, and
•the visa application was made no more than six months after the nomination of the position was approved.
14. As the nomination has not been approved, and has also been withdrawn, Mrs Zheng does not meet cl.187.233 of Schedule 2 of the Regulations
15. Mrs Zheng has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.
Grounds for judicial review
In her application commencing this proceeding, and in support of the allegation that the Tribunal's decision was affected by jurisdictional error, the applicant expressed her grounds of application in the following terms:
1.I want to get PR., My family want to get PR.
In her affidavit in support, sworn or affirmed on 31 May 2020, the applicant deposed:
1.All of the evidence of I provided is true.
2.I was treated unfairly in the process of immigration.
Consideration
Ground one
The allegation made in the initiating application identifies no basis upon which the Tribunal's decision might be set aside. Although it can be accepted that the applicant and her family wish to achieve permanent residency of Australia, that fact does not point to any relevant error which might lead to the Tribunal's decision being set aside.
Ground two
The assertion in the applicant's affidavit in support that she had been treated unfairly by "Immigration" was unparticularised and not specifically explained during her address to the Court. However, the applicant did explain the circumstances in which her nomination came to be withdrawn by her employer, namely that the applicant insisted that she be paid for the work that she had done for her employer. If that is an accurate summary of the circumstances in which the nomination came to be withdrawn, it is, as the applicant has said, very unfair. It is certainly not unknown that Australian employers exploit visa-holding employees with the threat of withdrawing nominations. However, unfair as the applicant's situation appears to be, it does not provide any basis to set the Tribunal's decision aside.
Generally
Put briefly, the applicant's assertions in her application and affidavit in support do not engage with the basis upon which the Tribunal reached its decision, namely that at the time of its decision, the applicant had no nomination to support her visa application. Indeed, she acknowledged as much to the Tribunal, as it recorded in paragraph 11 of its decision record, where it said:
11. As acknowledged by Mrs Zheng, at the time of this decision she does not have a nomination that has been approved and has not been withdrawn.
It is plain that the applicant's case for judicial review is not sufficiently strong that it merits consideration at a trial. In the circumstances, I do not consider that it is in the interests of the administration of justice that time for the bringing of this proceeding be extended.
CONCLUSION
Consequently, the application for an extension of time within which to bring the proceeding will be refused and the application dismissed.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 7 August 2024
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