Federal Court of Australia

James v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1201

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the Minister’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMBERG J:

Introduction

1    This is an appeal from orders of the Federal Circuit and Family Court of Australia (Division 2) (formerly known as the Federal Circuit Court of Australia) published as James v Minister for Immigration [2020] FCCA 1888. It principally concerns whether, a nomination of the first appellant by a business sponsor (the first appellant’s employer) made under s 140GB of the Migration Act 1958 (Cth) which was expressed to be for a subclass 482 (Temporary Skill Shortage) visa (subclass 482 visa), could suffice for the purpose of an application by the first appellant for the now defunct subclass 457 (Temporary Work (Skilled)) visa (subclass 457 visa). The appeal is brought by the first appellant as well as his partner and children, all of whom were secondary applicants on the visa application. I will refer to them collectively as the appellants.

Chronology

2    On 11 March 2016, the appellants applied for a subclass 457 visa. At that time the first appellant was employed as a drainer by a civil construction company.

3    To obtain the visa, the first appellant was required under cl 457.223(4)(a) of Sch 2 of the Migration Regulations 1994 (Cth) to hold an approved nomination from a business sponsor under s 140GB of the Act:

Standard business sponsorship

(4)     The applicant meets the requirements of this subclause if:

(a)     each of the following applies:

(i)     a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

(ii)     the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

(iii)     the approval of the nomination has not ceased as provided for in regulation 2.75;

…

4    The process for obtaining an approved nomination is governed by s 140GB of the Act. At that time s 140GB provided:

140GB    Minister to approve nominations

(1)    An approved sponsor may nominate:

(a)    an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:

(i)    the applicant or proposed applicant’s proposed occupation; or

(ii)    the program to be undertaken by the applicant or proposed applicant; or

(iii)     the activity to be carried out by the applicant or proposed applicant; or

(b)     a proposed occupation, program or activity.

(2)    The Minister must approve an approved sponsor’s nomination if:

(a)    in a case to which section 140GBA applies, unless the sponsor is exempt under section 140GBB or 140GBC—the labour market testing condition under section 140GBA is satisfied; and

(b)    in any case—the prescribed criteria are satisfied.

Note:     Section 140GBB provides an exemption from the labour market testing condition in the case of a major disaster. Section 140GBC provides for exemptions from the labour market testing condition to apply in relation to the required skill level and occupation for a nominated position.

(3)    The regulations may establish a process for the Minister to approve an approved sponsor’s nomination.

(4)    Different criteria and different processes may be prescribed for:

(a)    different kinds of visa (however described); and

(b)    different classes in relation to which a person may be approved as a sponsor.

5    The first appellant’s employer had “nominated” the first appellant, and the nomination was approved pursuant to s 140GB(2) of the Act on 21 April 2016 (first nomination). The first nomination was expressed to be in relation to a subclass 457 visa.

6    On 30 March 2017, a delegate of the first respondent (Minister) refused the application for the subclass 457 visa on the basis that the first appellant did not meet public interest criterion 4020, which was among the requirements for the subclass 457 visa under cl 457.224 of Sch 2 to the Regulations.

7    On 11 April 2017, the first appellant applied to the second respondent (Tribunal) for review of the delegate’s decision. Before the Tribunal made its decision (on 6 January 2020), the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Amending Regulations) commenced operation on 18 March 2018, abolishing cl 457 of Sch 2 to the Regulations and thus precluding further applications for subclass 457 visas.

8    Also, before the Tribunal made its decision and on 21 April 2017, the first nomination expired in accordance with the then terms of reg 2.75(2)(b) of the Regulations, which relevantly provided that a nomination ceased after 12 months. The first appellant’s employer did not seek a further nomination for the first appellant for a subclass 457 visa at that time or at any time later.

9    In the circumstance that new applications for subclass 457 visas were precluded by the abolition of cl 457 of Sch 2 to the Regulations, the first appellant was again nominated by his employer with the nomination expressed to be for a subclass 482 visa. On 14 October 2019 and under s 140GB of the Act the Minister approved the nomination for a subclass 482 visa (second nomination). The first appellant submitted before the Tribunal that the second nomination constituted an approved nomination which had not ceased for the purpose of cl 457.223(4) of the Regulations, notwithstanding that it was expressed to be a nomination for a subclass 482 visa and the first appellant was seeking a subclass 457 visa.

10    On 6 January 2020, the Tribunal published its reasons affirming the decision of the delegate not to grant the visa but on a different basis to that of the delegate. The Tribunal found that the first appellant met public interest criterion 4020. However, due to the changes effected by the Amending Regulations, the Tribunal concluded that the first appellant did not meet the requirements of cl 457.223(4)(a) of Sch 2 of the Regulation because he no longer held an approved nomination for a subclass 457 visa after the first nomination had ceased. The Tribunal did not accept the submission of the first appellant that it was open to the Tribunal to determine that the first appellant met cl 457.223 on the basis of the second nomination (see the Tribunal’s reasons at [47] to [55]).

11    Before the primary judge the appellants submitted that the second nomination constituted an approved nomination under s 140GB of the Act in relation to the first appellant’s application for a subclass 457 visa despite that nomination being expressed to be for a subclass 482 visa (see primary judge’s reasons [12]). On the appellants’ contention, the only requirement was that an approved nomination under s 140GB existed regardless of whether it was a nomination expressed to be in respect of a particular visa.

12    The primary judge found at [28] that the submission of the appellants “ignores the language in paragraph (a) of [s 140GB] that expressly refers to: ‘an applicant, or proposed applicant, for a visa of a prescribed kind, (however described)’” (emphasis in original).

13    At [29] and [30] the primary judge concluded:

Sad as it may be, the applicant’s visa application was for a 457 visa. The reference in paragraph 3 of the regulations does not overcome the want of an approved nomination in respect of a Subclass 457 visa and that the applicants can no longer meet that criteria.

It is unfortunate but, notwithstanding the skilful arguments by Mr Estrin, there is no basis upon which this Court can find that the relevant criteria was met in the circumstances where the approved nomination had ceased.

14    It may be inferred that the primary judge considered that the submission of the appellants was inconsistent with the language of s 140GB which provided that “[a]n approved sponsor may nominate … an applicant … for a visa of a prescribed kind (however described)”. That is, the primary judge considered that the nomination under s 140GB must be “for a visa of a prescribed kind” and that the nomination of the first appellant by his employer had to be for a subclass 457 visa to satisfy the requirement in cl 457.223(4)(a) of the Regulations.

The grounds of appeal

15    The appellants relied on two grounds of appeal. By their first ground the appellants contended that the primary judge erred in failing to find that the Tribunal’s decision was affected by jurisdictional error because the Tribunal asked itself the wrong question or made findings in law that were not open to it. This ground was particularised by contentions to the effect that the primary judge had erred in finding that the Tribunal was correct to conclude that the appellants failed to meet the relevant criteria for the grant of a subclass 457 visa and that the primary judge erred in not concluding that the Tribunal had erred by finding that the second nomination could not be an approved nomination for the purpose of cl 457.223(4)(a) of Sch 2 of the Regulations.

16    At the hearing, leave was granted to the appellants to amend their Notice of Appeal to raise a second ground of appeal which had not been relied upon before the primary judge. The second ground of appeal was subsequently addressed by written submissions from the parties. By the amended notice of appeal the appellants contended that the Tribunal erred by finding that the first nomination had expired.

Consideration

The First Ground – the construction of section 140GB of the Act

17    By the first ground the appellants submitted that the Tribunal had essentially found that the criterion in cl 457.223(4)(a)(i) of the Regulations was not met. Clause 457.223(4)(a)(i) requires there to be “a nomination of an occupation in relation to the applicant [which] has been approved under section 140GB of the Act” (see above at [3]). The appellants submitted that the first appellant held an approved nomination under s 140GB of the Act on two bases. The first basis, which was the focus of the appellants’ oral and written submissions, concerned para (a) of s 140GB(1). The second basis concerned para (b) of s 140GB(1).

The first basis

18    Section 140GB(1)(a)(i) relevantly provided that “[a]n approved sponsor may nominate … an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to … the applicant or proposed applicant’s proposed occupation”. The appellants contended that the words “for a visa of a prescribed kind” merely described the kind of applicant who could apply to be nominated under s 140GB. In their view, s 140GB did not require that the nomination itself be “for a visa of a prescribed kind” in the sense of requiring each nomination to designate the visa in relation to which it is sought. Put shortly the appellants submitted that the words “an applicant…for a visa of prescribed kind” qualified the applicant, not the nomination. The Minister contended to the contrary that those words qualified the nomination.

19    The appellants advanced three reasons in support of their construction of s 140GB.

20    First, the interpretation was said to be the natural reading of s 140GB(1)(a), informed by its syntax, which separates para (a) from sub-paras (i)-(iii). It was said that it finds support from the symmetry with para (b) of s 140GB(1), which does not refer to any particular visa but repeats the reference to “occupation, program or activity” enumerated in sub-paras (a)(i)-(iii). The appellants’ interpretation of the text of s 140GB was also said to be confirmed by [81]-[85] of the Explanatory Memorandum to the Migration Legislation Amendment (Worker Protection) Bill 2008 (Cth) (Explanatory Memorandum) which reiterated the distinction between a nomination for a person under para (a) and a nomination for an “occupation, program or activity” under para (b) of s 140GB(1).

21    A reading of s 140GB(1)(a) which required that a nomination be “for a visa of a prescribed kind” was said to stray too far from the text of the provision and lead to the “absurdity” which occurred in this case in which an applicant is unable to rectify an expired nomination due to the abolition of a particular visa class.

22    Second, the appellants referred to s 140AA of the Act and the Explanatory Memorandum to identify the purpose of the regime as establishing a means of addressing skills shortages. The appellants submitted that the objective of addressing skills shortages was better served by identifying persons who could fill the shortages rather than limiting the process by reference to particular visa subclasses. That was especially so, it was said, given that the regime contemplates that new visa subclasses may be established and others abolished depending on the current iteration of the Regulations but the need for nominations to be for approved occupations, programs or activities remains relatively constant.

23    The contrary construction was said not to be supported by the mischief identified above because there was no good policy reason for a nomination under s 140GB to be tied to a particular visa subclass in circumstances where the Executive may prescribe detailed criteria in the Regulations for the grant of particular visas (see eg, Sch 2 of the Regulations). The appellants said that there was therefore no need for s 140GB to be concerned with a particular visa class because there was already an appropriate means for controlling the grant of a visa by way of the prescribed criteria in the Regulations.

24    Third, on this construction, the appellants said that the words “in relation to a visa of a prescribed kind” still had work to do. The appellants referred to [85] of the Explanatory Memorandum which provides that “[a]n approved sponsor will only be required to seek an approved nomination from the Minister if an approved nomination is required to make a valid visa application, or is a criterion for grant of a visa”. The appellants sought to explain that only some visas require an approved nomination under s 140GB. The work of the words in the chapeau – “for a visa of a prescribed kind” – was said to be to make it clear that only an applicant who required a nomination under s 140GB would need to seek such a nomination.

25    Although the submission of the appellants was impressively argued by counsel, it was ultimately unpersuasive.

26    On the appellants’ interpretation of s 140GB, it would be possible for “an applicant” (as referred to in s 140GB(1)), to be an applicant for any one of a number of different visas provided that the visa applied for was of a “prescribed kind”. The contrary construction, advanced by the Minister, requires that a nomination under s 140GB be a nomination of an applicant in relation to a particular visa within the class or kind of visas which fall within the description “prescribed”. On that view, the words “for a visa of a prescribed kind” do not merely qualify the applicant who is being nominated but require the applicant to be nominated with respect to a specific visa “of a prescribed kind”.

27    The appellants’ reference to the syntax and text of s 140GB does not disclose a persuasive reason in favour of their construction. Nor did the Explanatory Memorandum, which largely restated the terms of s 140GB. The claim that the Minister’s interpretation would lead to absurdity was not well founded. The Act clearly contemplates that visa subclasses may come and go. In that context it can hardly be claimed that the barring of a new application for a defunct visa subclass is absurd. Nor does the Minister’s interpretation stray too far from the text of s 140GB. On the contrary, the Minister’s interpretation is, at least, just as comfortable with the language of s 140GB as the interpretation advanced by the appellants.

28    As to purpose, it should not be forgotten that legislation will not always pursue its purpose at all costs: see Carr v Western Australia (2007) 232 CLR 138 at [5] (Gleeson CJ). While it may be accepted that the purpose of the scheme is to address skills shortages, it cannot seriously be suggested that ambiguity in the Act should always be resolved in a way that would result in the greatest number of skills shortages being mitigated. In this case it is clear that the purpose of the legislation is to be achieved on the detailed terms specified in the Act and Regulations. The task before the Court is to ascertain the meaning of those terms by which Parliament intended the scheme’s objective to be achieved.

29    Both interpretations contended for by the parties were consistent with the purpose of the scheme. But, read contextually and in harmony with the provision as a whole, I am persuaded that the construction contended for by the Minister is the correct construction of the Act. The fact that the appellants’ construction might have resulted in more visas being granted does not add very much, if anything, to the question before the Court.

30    Under s 140GB(2)(b), the Minister must approve a person’s nomination if, among other things, the “prescribed criteria are satisfied”. To my mind, the “prescribed criteria” referred to in s 140GB(2)(b) are evidently a reference to the “criteria” which “may be prescribed” under s 140GB(4), in the process contemplated by s 140GB(3), for the Minister to approve a sponsor’s nomination. Accordingly, the scheme of s 140GB the Act contemplates that there may be criteria (or processes) which the Minister may be obliged to apply in the course of determining whether to approve an approved sponsor’s nomination under s 140GB(2).

31    The conclusion that s 140GB contemplates approval criteria against which a nomination must be assessed poses substantial difficulties for the appellants’ argument. If the words “for a visa of a prescribed kind” in s 140GB(1)(a) were merely intended to qualify who could be nominated under s 140GB and not require a nomination to be for a particular visa, then there would be no mechanism by which the Minister could ascertain which approval criteria he or she was obliged to apply in the course of approving the nomination, in circumstances where s 140GB contemplates that different approval criteria for nominations may be prescribed for different kinds of visas (s 140GB(3) and (4)(a)). The fact that the approval process for a nomination is contemplated to be visa specific makes it unlikely that the nomination itself was intended to be generic. A construction of s 140GB(1) which is in harmony with s 140GB(2)-(4) should be preferred.

32    The appellants submitted to the contrary that the capacity to prescribe criteria for “different kinds of visa (however described)” under s 140GB(4)(a) referred to the categories of “occupation”, “program” or “activity” enumerated in s 140GB(1)(a)(i)-(iii) and (b). On this interpretation, the word “kinds” in s 140GB(4)(a) constituted a reference to the categories of occupations, programs or activities under s 140GB(1) and the visas that may fall within each category. This was said to be supported by the word “kinds” being at a higher level of abstraction than, for example, subclass. On this approach the Executive would be able to prescribe different approval criteria for each category of occupations, programs or activities and the visas that fall within each category. This scheme was said to marry up to the level of generality contemplated by the capacity to prescribe criteria under s 140GB(4)(b) for “classes” in relation to which a person could be approved as a sponsor.

33    The submission is unpersuasive. It seeks to impermissibly read words into s 140GB(4)(a). There is no textual, contextual or purposive justification for doing that. The phrase “different kinds of visa (however described)” simply means what it says. There is no discernible textual ambiguity. Applying the literal meaning of that phrase causes no contextual difficulty. To the contrary, the meaning is apt to provide for a harmonious operation of s 140GB for the reasons already given. Thirdly, no purposive basis for not giving the words their ordinary meaning is apparent. There is in that respect no reason “to marry up” the intended subject of para (a) with para (b) of s 140GB(4) given that each of those paragraphs address a different subject.

34    The appellants’ other submission that there was no good policy reason for a nomination to be tied to a particular visa subclass was also unpersuasive. The wisdom of the scheme is a matter for Parliament. For the reasons stated earlier, the Act contemplates that the Minister may apply visa specific criteria in the course of approving a nomination. In order to know which approval criteria ought to be applied, the Minister must know the visa subclass in relation to which the nomination was made. It follows that the words “for a visa of a prescribed kind” should be read as imposing a condition on the nomination, not merely describing the kind of applicant under s 140GB. If there need be a policy reason, in my view, it is clear enough from the terms of the Act that a nomination should be tied to a particular visa of a prescribed kind to ensure the orderly operation of the scheme in which s 140GB is found.

35    Finally, it was not clear what meaningful work the words “for a visa of a prescribed kind” would do on the construction advanced by the appellants. If all those words do is qualify which applicant may be nominated under s 140GB, then the provision would have the same operation if those words were omitted. In either case it would be self-evident that a nominated applicant would only be an applicant for a visa for which nomination was a relevant requirement. The appellants’ answer to this was that the words have been included to make it clear that a nomination under s 140GB was only required for particular visa applications. However, that would be clear regardless of the presence of the phrase “for a visa of a prescribed kind” in s 140GB.

The second basis

36    The appellants submitted in the alternative that the second nomination constituted an approved nomination under s 140GB(1)(b). Unlike para (a), s 140GB(1)(b) refers to neither an applicant nor “a visa of a prescribed kind” but provides that “[a]n approved work sponsor may nominate … a proposed occupation, program or activity”.

37    The appellants contended that paras (a) and (b) of s 140GB(1) are not mutually exclusive. The appellants said that a nomination of an applicant under para (a) could, and indeed would, simultaneously be a nomination under para (b). This was said to be consistent with the policy of the scheme identified above. On that interpretation, the second nomination was said to meet the description of a nomination under s 140GB(1)(b).

38    The submission cannot be accepted. Section 140GB(1) clearly contemplates that the nominator have two distinct pathways by which a nomination may be approved, the first being under para (a) and the second being under para (b). Each pathway requires the nominator to stipulate a proposed occupation, program or activity. However, para (a) requires more specific information in the circumstance where the nomination is in respect of an applicant. The interpretation contended for by the appellants would make the additional requirements under para (a) otiose because a nomination under para (a) would always constitute a nomination under para (b). Put shortly, there would no point to the additional requirements under para (a) of s 140GB(1). For that reason, the construction advanced by the appellants should be rejected.

39    The second nomination was a nomination for the first appellant. It could therefore not answer the description of a nomination approved pursuant to s 140GB(1)(b). Given the subject of the second nomination, the appellants were bound by the requirements of s 140GB(1)(a). Accordingly, the second basis advanced by the appellants must fail.

40    As both limbs of this ground have been rejected it follows that I have not been persuaded of any error made by the primary judge arising from the first ground of appeal. That ground must be rejected.

The Second Ground – Item 6704(15) of the Amending Regulations

41    The second ground of appeal, as it appears in the appellants’ Amended Notice of Appeal, is in the following terms:

2.    The Second Respondent erred in finding that the nomination with the transaction reference number TRN EGOB1UH72M approved on 21 April 2016 had expired.

Particulars

a.    Item 6704 (15) of the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 disapplied reg. 2.75(2)(b) of the Migration Regulations 1994 (Cth) [sic], with the result that at the time of the Second Respondent's decision, the nomination approved on 22 April 2016 had not ceased.

42    The written submissions made in support of the second ground of appeal travel well beyond that ground and in essence sought to raise a new ground for which no leave has been granted. I should not entertain the new ground. The conduct of the appellants in raising a new ground without leave and without even an acknowledgement that a new ground is being raised, is conduct which the Court should not encourage.

43    In any event, the new ground sought to be raised is without merit. I do not accept that the terms of reg 2.75(2)(b) of the Regulations as at the time of the Tribunal’s decision (6 January 2020), applied to the first appellant’s nomination in circumstances where that nomination had ceased on 21 April 2017.

44    Turning then to the new ground for which leave was granted, as the appellants’ further written submission explained the abolition of subclass 457 visas was brought about by the Amending Regulations. The Amending Regulations commenced on 18 March 2018 and included transitional provisions dealing with subclass 457 visa applicants.

45    The appellants relied upon reg 2.75(2)(b) of the Regulations as at the time of the commencement of the Amending Regulations together with item 6704(15) of the Amending Regulations to contend that the first appellant’s nomination had not expired at the time of the Tribunal’s decision and that the Tribunal erred in finding to the contrary.

46    At the time of the commencement of the Amending Regulations on 18 March 2018, the relevant terms of reg 2.75(2)(b) of the Regulations were as follows:

(2)    An approval of a nomination ceases on the earliest of:

…

(b)    12 months after the day on which the nomination is approved;

…

47    However, the transitional provision in item 6704(15) of the Amending Regulations provided:

However, paragraph 2.75(2)(b) does not apply in relation to a nomination made before the commencement day if:

(a)    before the commencement day, the person identified in the nomination applied for a Subclass 457 (Temporary Work (Skilled)) visa on the basis of the nomination; and

(b)    within 12 months after the day on which the nomination is approved, the person applies to the Tribunal for review of a decision to refuse to grant the visa.

48    The appellants say that the first appellant satisfied the criteria in both (a) and (b) of item 6704(15) because (i) he was a person nominated for a subclass 457 visa and (ii) that within twelve months after the date on which his nomination was approved and on 11 April 2017, the first appellant applied to the Tribunal for review of the delegate’s decision to refuse the grant of a visa.

49    The appellants characterised item 6704(15) as a disapplication provision to contend that the terms of reg 2.75(2)(b) of the Regulations did not apply to the approval of the first appellant’s nomination and, therefore, the approval of the nomination had not ceased as at the time of the Tribunal’s decision. This was said to follow from a literal reading of item 6704(15). The literal reading was then sought to be supported by reference to various contentions the particulars of which need not be here addressed.

50    The appellants’ contention must be rejected. It is flawed at its outset, because it fails to appreciate or it entirely ignores, that by the time of the commencement of the Amending Regulations the first appellant’s nomination had ceased having gone out of existence nearly a year earlier on 21 April 2017. At the time of commencement of the Amending Regulations in March 2018 neither the terms of reg 2.75(2)(b) of the Regulations nor the terms of item 6704(15) of the Amending Regulations were applicable to the first appellant’s lapsed nomination.

51    It follows that the disapplication of reg 2.75(2)(b) provided for by item 6704(15) of the Amended Regulations was irrelevant to the lapsed nomination of the first appellant and entirely inapplicable.

52    The Minister is correct to say that the appellants must be contending that item 6704(15) had the effect of re-enlivening the first appellant’s lapsed nomination. The Minister contended that there is no basis for construing item 6704(15) as having the retrospective operation for which the appellants contend.

53    However, whether and the extent to which item 6704(15) has retrospective operation in relation to nominations to which it applies is unnecessary to consider, because the provision simply does not apply to the first appellant’s lapsed nomination.

54    Neither a textual nor purposive reading of reg 2.75(2)(b) in combination with item 6704(15) supports the contention that the operative scope of those provisions extends to nominations which had lapsed at the time the Amending Regulations commenced. The idea that the applicable nominations included nominations which had already lapsed and thus nominations which had lapsed at any time prior to 18 March 2018, travels well beyond the scope of the conceivable mischief that, as a transitional provision, item 6704(15) could be construed to address.

Disposition

55    As each of the appellants grounds of appeal have been rejected, the appeal must be dismissed. It follows that the appellants should pay the Minister’s costs of the appeal. I will make orders accordingly.

Associate:

Dated:    12 October 2022

SCHEDULE OF PARTIES