Federal Court of Australia

KC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 4

ORDERS

THE COURT ORDERS THAT:

1.    On or before 27 January 2023, the parties confer and bring in draft orders to give effect to these reasons or, in the absence of agreement, file and serve written submissions limited to 1 page.

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

REASONS FOR JUDGMENT

RARES J:

Introduction

1    The central issue in this appeal is whether the effect of the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) (the amending Regulations), including item 178, that inserted cl 6702 into the transitional provisions in Sch 13 of the Migration Regulations 1994 (Cth) (the Regulations), was to render futile the grant of constitutional writ relief to the appellants, Dipesh KC, his wife and child, as the Federal Circuit Court held.

2    The amending Regulations repealed the provisions in Pt 457 of Sch 2 of the Regulations that had provided for the grant of a subclass 457 temporary work (skilled) visa within the temporary business entry (class UC) class of visas.

3    On 11 March 2015, Mr KC applied for a subclass 457 visa on his own behalf and that of his family, who would qualify for the grant of the visa only if he did. It is not necessary to refer to the rights of Mr KC’s family members to be granted visas in these reasons as their entitlement is tied entirely to whether he can obtain relief.

4    As I will explain in more detail below, on 21 June 2017, the Administrative Appeals Tribunal decided to affirm the decision of the delegate of the Minister made on 5 August 2015 but only notified on 16 February 2016 that had refused to grant visas to Mr KC and his family (the visa decision). On 1 May 2019, the Tribunal (differently constituted) affirmed the delegate’s decision not to approve, under s 140GB(1)(b) of the Migration Act 1958 (Cth), the College’s nomination as Mr KC’s sponsor for his visa (the nomination decision).

5    The question on this appeal is whether, by the time that the trial judge in the Federal Circuit Court decided the appellants’ claims for constitutional writ relief on 23 March 2020, the consequence of the amending Regulations was that, even if the visa decision was affected by jurisdictional error (the error issue), it would be futile to remit to it the application for review of the delegate’s decision because, as a result of the nomination decision, no one could satisfy the criterion prescribed in reg 2.73 of being an approved sponsor of Mr KC who has nominated a proposed occupation in respect of him, within the meaning of s 140GB(1)(b) of the Act (the futility issue).

6    Mr KC acted for himself before the primary judge and in this Court until counsel and solicitors who were appearing in an appeal before me that raised similar questions and was being heard on the next day, namely Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 507, generously agreed to appear for him on a pro bono basis. I am grateful for their assistance, which, of course, was not available to the trial judge.

The Legislative Context

7    Prior to the amending Regulations coming into force on 18 March 2018, relevantly, the legislative context was that:

(1)    the Act provided:

(a)    in s 140GB, that an approved sponsor might nominate an applicant or proposed applicant for a visa subclass (including a subclass 457 visa) in relation to the applicant’s, or proposed applicant’s, occupation (s 140GB(1)(a)(i)) or the activity to be carried out by him or her (s 140GB(1)(a)(iii)) or a proposed occupation, program or activity (s 140GB(1)(b)) and the Minister had to approve the nomination if the prescribed criteria were satisfied (s 140GB(2)(b)).

(b)    in s 353, that:

The Tribunal, in reviewing a Part 5-reviewable decision:

(a)    is not bound by technicalities, legal forms or rules of evidence; and

(b)    shall act according to substantial justice and the merits of the case.

(2)    the Regulations provided:

(a)    in reg 2.72(2), prescribed criteria for approval of a nomination for a subclass 457 visa, including reg 2.72(5), namely:

The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.

(b)    in cl 457.223(4)(a) of Sch 2, that:

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 …

8    After the amending Regulations came into force, the legislative context was that:

(1)    regs 2.72 and 2.73 would apply only to persons who currently held a subclass 457 or 482 visa.

(2)    the amending Regulations provided in:

(a)    item 167 of Pt 1 for the repeal of Pt 457 of Sch 2 of the Regulations;

(b)    item 168 for the creation of a new subclass of visas, subclass 482, and the insertion of cll 482.111–482.613;

(c)    item 178 for the insertion into Sch 13 of the Regulations of Pt 67 of transitional provisions dealing with the effect of the amending Regulations, including:

(i)    cl 6702(2)(c):

6702 Application provisions in relation to visa applications

…

(2)     Despite the repeal of the following provisions by the amending regulations, those provisions (including any instruments made under them), as in force immediately before the commencement of Schedule 1 to the amending regulations, continue to apply in relation to an application for a visa made before the commencement day:

    …

    (c)     Part 457 of Schedule 2;

    …

(emphasis added)

(ii)    cl 6704(6) and (7):

(6)    Despite:

…

(b)    the amendments of regulation 2.72;

    by the amending regulations, those provisions (including any instruments made under them), as in force immediately before the commencement of Schedule 1 to the amending regulations, continue to apply in relation to a nomination of an occupation made before the commencement day in relation to:

(c)     a holder of a Subclass 457 (Temporary Work (Skilled)) visa; or

(d)    an applicant or a proposed applicant for a Subclass 457 (Temporary Work (Skilled)) visa, if the applicant or proposed applicant applied for a Subclass 457 (Temporary Work (Skilled)) visa on the basis of the nomination before the commencement day.

(7)    Despite the amendments of regulation 2.73 made by the amending regulations, that regulation (including any instruments made under it), as in force immediately before the commencement of Schedule 1 to the amending regulations, continues to apply in relation to a nomination made before the commencement day of an occupation in relation to a holder of, or an applicant or a proposed applicant for, a Subclass 457 (Temporary Work (Skilled)) visa.

(emphasis added)

(3)    The explanatory statement for items 167 and 178 in the amending Regulations stated relevantly:

(a)     in respect of item 167:

Item 167 – Part 457 of Schedule 2

This item repeals the criteria for the grant of the Subclass 457 (Temporary Work (Skilled)) visa. The repeal does not affect visa applications made prior to the repeal on 18 March 2018 (see subitem 6702(2) of part 67 of Schedule 13 to the Migration Regulations, inserted by item 178).

(b)    In respect of item 178:

(i)    cl 6702 “has the effect that the amendments and repeal of various regulations do not affect applications for visas made before 18 March 2018”; and

(ii)    cl 6704 “has the effect that changes to regulations relating to sponsorship and nomination under Part 2A of the Migration Regulations do not affect applications and nominations made before 18 March 2018”.

Background

9    The appellants are citizens of Nepal. On 11 March 2015, they applied for the visas. In the application, Mr KC identified his sponsoring employer as No 1 Pest Control Pty Ltd.

10    On 22 April 2015 and 23 June 2015, the Minister’s Department wrote to Mr KC informing him that No 1 Pest Control did not have an approved nomination for him and that, since a criterion for the grant of the visa was that his prospective employer have an approved nomination, his application was unlikely to be successful. Subsequently, on 16 July 2015, Mr KC’s migration agent informed the Department that No 1 Pest Control had sought review in the Migration Review Tribunal (MRT) of a delegate’s decision to refuse its nomination of Mr KC.

11    On 24 July 2015, the Department emailed the migration agent informing him that the decision on Mr KC’s application could not be delayed to await the MRT decision.

12    Initially, on 5 August 2015, the delegate refused to grant the visa. However, because the Department had not notified the appellants or their migration agent correctly, on 16 February 2016, the delegate re-notified the appellants of the decision to refuse to grant the visas. The delegate’s decision record found that, on 23 June 2015, the Department had refused the nomination application made by No 1 Pest Control and, accordingly, Mr KC did not meet the criterion in cl 457.223(4)(a) of Sch 2 in the Regulations.

13    On 4 March 2016, the appellants applied to the Tribunal to review the delegate’s decision.

14    On 3 November 2016, Mr KC gave evidence to the Tribunal at a hearing. On 8 November 2016, Mr KC emailed the Tribunal informing it that Australian Harvard International College was his new sponsor and attached an acknowledgement, from the Department to the College dated 2 November 2016, of the receipt of its nomination application.

15    On 9 November 2016, the Tribunal wrote to Mr KC informing him that, on 8 November 2016, the Tribunal had affirmed the decision not to approve No 1 Pest Control’s nomination in relation to him. The Tribunal gave Mr KC 14 days to respond to this information and the fact that, as a result, Mr KC could not rely on that sponsor to satisfy cl 457.223(4)(a).

16    On 10 November 2016, Mr KC replied to the Tribunal attaching again the acknowledgement in relation to the College’s application and its nomination of him to work as its sales and marketing manager.

17    On 2 June 2017, a delegate refused the College’s application under s 140GB of the Act in relation to Mr KC. The delegate referred to the then provisions of reg 2.72 and in particular reg 2.72(10)(f) that prescribed a criterion for the grant of an approved nomination that, where the applicant was a standard business sponsor, “the Minister is satisfied that … the position associated with the nominated occupation is genuine”. The delegate was not satisfied that the position of a sales and marketing manager was genuine when assessed against the ANZSCO Code 131112 requirements. ANZSCO is an acronym for the “Australian and New Zealand Standard Classification of Occupations” that is produced by the Australian Bureau of Statistics, as Perram J observed in Song v Minister for Home Affairs [2019] FCA 970 at [5]. The delegate noted that the College had provided information and documents about its proposed position for Mr KC. She was not satisfied that what the College proposed as Mr KC’s position met the nature of such a role in ANZSCO Code 131112 but, rather, suggested that the College’s job description was “very generic in nature” and appeared to describe a role at a lower level than that of a manager. The delegate found:

The role of Sales and Marketing Manager is typically associated with organisations operating within a competitive and complex business environment, with a significant number of staff, resources, services/product lines and client commitments. As indicated above, I have no irrefutable evidence before me to be satisfied that the tasks of the position will be performed at the skilled level of a Sales and Marketing Manager as specified in ANZSCO.

…

I also find it worthy to note that the nominee was previously nominated by another organisation in a different line of occupation since 2015 and was unsuccessful on a number of occasions. Given this history, the legitimacy of this position is questionable as I have concerns that the position may have been created to secure the stay of the nominee.

Based on all information before me, I am not satisfied the position is consistent with the tasks of the nominated occupation as listed in the ANZSCO when taken in the context of where the position is to be performed. I do not consider the position associated with the nominated occupation to be genuine, and the primary applicant does not meet subparagraph 2.72(10)(f).

(emphasis added)

18    The delegate accepted that Mr KC was working for the College in the position with the title of sales and marketing manager and that, operationally, it needed the work (as opposed to its capacity to meet the requirements of ANZSCO Code 131112) he was performing to be done.

19    On 5 June 2017, the Tribunal wrote to Mr KC informing him of the delegate’s refusal of the College’s nomination in relation to him. The letter invited Mr KC to respond within 14 days.

20    On 16 June 2017, Mr KC emailed the Tribunal attaching the College’s application to the Tribunal lodged on 14 June 2017 to review the delegate’s decision in relation to it and requested the Tribunal to defer its decision on his application until it decided the College’s.

21    As I noted at [4] above, subsequently, on 1 May 2019, the Tribunal made the nomination decision.

The Visa Decision

22    On 21 June 2017, the Tribunal decided to affirm the delegate’s decision to refuse the appellants’ visas. It recorded that, at the hearing on 3 November 2016, Mr KC had given evidence that he had been employed by the College since April 2016 to look after its marketing and sales. The Tribunal noted that it had told him that cl 457.223(4)(a) required that he be the subject of a current nomination and that he had informed it that he was no longer working for his previous sponsor, No 1 Pest Control. It found that, shortly after 8 November 2016, Mr KC had provided to it the College’s acknowledgement and the nomination form in respect of him.

23    The Tribunal noted that it had informed Mr KC that it had agreed to await the outcome of the College’s application to sponsor him before deciding the review. It recorded that, on 16 June 2017, Mr KC had provided it with the College’s application to the Tribunal to review the delegate’s refusal on 2 June 2017 of its application to sponsor him. The Tribunal found:

17.    The Tribunal has first considered the applicant’s request to delay making its decision but for the reasons that follow has decided not to do so.

18.    The Tribunal is required to make decisions that are fair and efficient. The Tribunal notes that the applicant has been on notice since being notified of the visa refusal that a nomination in relation to him had to be approved. The Tribunal considers that awaiting the outcome of the review for the second nomination, in the circumstances of this case, would be contrary to the efficient manner in which the Tribunal is required to conduct the review. The applicant has already been given the opportunity to obtain a nomination from a second sponsor despite the first sponsor’s nomination, and review of that nomination, being unsuccessful. The Tribunal agreed to await the outcome of a second nomination, which took some 6 months to process. In the circumstances, the Tribunal considers that the applicant has had a fair opportunity to become the subject of an approved nomination. For these reasons, the Tribunal has decided not to delay making its decision on the application for review.

19.    The Tribunal finds that there is no approved nomination of an occupation relating to the applicant by a standard business sponsor. The applicant therefore does not meet the requirements in cl 457.223(4)(a).

(emphasis added)

The Fresh Evidence and further Submissions

24    Because the issues in the appeal changed somewhat, and without opposition, once the appellants were represented, I ordered that the Minister put on evidence of the Tribunal’s subsequent nomination decision on the College’s application for review, made on 1 May 2019, and set a timetable for submissions to address the futility issue.

25    At the resumed hearing on 21 April 2022, the Minister read the affidavit of solicitor, Michelle Harradine, affirmed on 21 April 2022. That affidavit established that the Department’s records contained an entry that the nomination decision had been made on 1 May 2019, but there was no evidence of the Tribunal’s reasons for that decision.

26    On 3 May 2022, another solicitor for the Minister, Allana Meaney, filed an affidavit annexing a copy of the Tribunal’s reasons for the nomination decision. The content of the nomination decision was fresh evidence that the Minister filed after the hearing pursuant to orders that I made for the purpose of enabling consideration by the parties of, and use in, further written submissions which they filed on the futility issue.

27    Mr KC filed the affidavit of Matrika Bimoli affirmed on 17 May 2022. Mr Bimoli was the PEO of the College. He deposed that:

    the College traded under the name ‘Australian Harbour International College’;

    on 2 November 2016, he had applied for the approval of the nomination associated with Mr KC’s visa;

    on 14 June 2017, he had lodged an application for review of the delegate’s decision of 2 June 2017 to refuse the College’s approval application; and

    he did not pursue that application for review after September 2018 because the Department and the Tribunal had refused Mr KC’s application for the visa.

28    On 2 June 2022, the Minister filed an affidavit affirmed by another solicitor, Ashwin Sivaratnam, who annexed two letters dated, respectively, 21 December 2016 and 12 October 2021, from the Department to the College. The 21 December 2016 letter informed the College that its application to be a sponsor had been approved under s 140GB(2) of the Act for the five years to 21 December 2021 and related to persons whom the College wished to sponsor for a subclass 457 visa. Similarly, the 12 October 2021 letter informed the College that its application to be a sponsor had been approved for the five years to 12 October 2026 and related to persons whom the College wished to sponsor for a subclass 482 or subclass 494 visa.

29    Neither party objected to the above evidence being admitted in the appeal and I have admitted it pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth): see CDJ v VAJ (1998) 197 CLR 172 at 201 [109], 203 [114] per McHugh, Gummow and Callinan JJ.

The Nomination Decision

30    In the nomination decision, the Tribunal stated, wrongly, at [4] that the College had lodged its application for review on 14 June 2017 and “no related review application was made by the nominee [scil: Mr KC] identified in the nomination”. It said that the Tribunal was constituted initially in early 2018 and subsequently reconstituted in early August 2018. The Tribunal recorded that, on 2 August 2018, it had sent an invitation to the College to attend a hearing on 3 September 2018 but that no one had attended at that hearing on behalf of the College. It noted that about two hours after the scheduled time of the hearing Mr Bimoli contacted a case officer at the Tribunal and explained that his son had been discharged from hospital on 25 August 2018. The Tribunal did not consider that to be an acceptable reason for Mr Bimoli’s failure to attend the hearing and wrote, later on 3 September, to the College explaining why. However, in that response, the Tribunal invited the College to submit any documents that Mr Bimoli had said that he had wished to bring to the hearing by later on that day, which he did.

31    On 16 April 2019, the Tribunal wrote to the College under s 359A of the Act inviting it to comment on or respond to matters that the letter identified, including, relevantly, that the person whom the College wished to sponsor, Mr KC, did not hold a subclass 457 visa. The letter stated that: “[t]he Subclass 457 visa program ended on 18 March 2018 and has been closed to new applications from that date”. The Tribunal found that the College did not respond to its invitation under s 359A.

32    The Tribunal found that reg 2.72(5) required an applicant for approval to identify in the application the visa holder or applicant or proposed applicant for the visa who would work in the nominated occupation. The Tribunal was not satisfied that the College met the requirements of reg 2.72(5) because Mr KC “does not hold, and is unable to be granted, the type of visa required to work in the nominated occupation relating to the matter under review” (emphasis added). Accordingly, it affirmed the delegate’s decision.

The Trial Judge’s Decision

33    The trial judge found that the lack of a sponsor was an insurmountable problem for Mr KC and doubted whether it was possible to allow a change of sponsor after the refusal of No 1 Pest Control’s application. He found that there was no jurisdictional error in the Tribunal’s decision and that it was entitled “to decide, in an appropriate case, that ‘enough is enough’ [Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 368 [81] per Hayne, Kiefel and Bell JJ]”. His Honour rejected the grounds that Mr KC had put below, namely, that the Tribunal had failed to take into consideration relevant evidence, denied him natural justice and misinterpreted the law, on the basis that those grounds were unparticularised and amounted to unsupported bare assertions.

34    The trial judge found that, if there were a jurisdictional error, it would be futile to grant the appellants relief because the effect of the amending Regulations was that it was no longer possible for any employer to seek approval of a nomination as a sponsor of an applicant for a 457 visa. Accordingly, the trial judge dismissed the application with costs.

This Appeal

35    After the appellants’ pro bono counsel and solicitors agreed to act for them, they handed up an amended notice of appeal on 21 April 2022, which was subsequently filed without opposition from the Minister, that raised two grounds, namely, that his Honour erred:

(1)    in failing to find that the Tribunal acted unreasonably in failing to grant an adjournment of the review so as to permit the determination of the College’s application for review of the delegate’s decision; and

(2)    in finding that it would be futile to remit the appellants’ application for the review to the Tribunal.

The Minister’s Submissions

36    The Minister argued that the Tribunal did not act in a legally unreasonable way when refusing to await the outcome of the College’s review application. He relied on what Griffiths J (with whom Gleeson J agreed at 528 [58]) said in Minister for Immigration and Border Protection v Haq (2019) 267 FCR 513 at 522 [37] that, in applying the standard of legal reasonableness, the Court does not substitute its own view of how the administrative decision-maker should have exercised the impugned discretion. The Minister contended that the Tribunal gave an intelligible and rational justification at [18] of the visa decision for its exercise of its discretion not to postpone the determination of Mr KC’s review.

37    In written submissions that the Minister filed after the hearing, he argued that, after the commencement of the amending Regulations, it was no longer possible for an employer to seek approval of a prospective subclass 457 visa holder. He noted that, at the present time, the nomination decision is not the subject of judicial review proceedings and any such challenge in the future would need an extension of time under s 477(2) of the Act. He contended that even if the nomination decision was affected by jurisdictional error, it could still have factual and legal consequences and could not be characterised as a nullity. The Minister submitted that the question whether the nomination decision was affected by jurisdictional error had to be determined by reference to the facts as they existed at the time that the Tribunal made it, relying on Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164 at 171–172 [28] per Beach, Thawley and Cheeseman JJ. He asserted that, in making the nomination decision, the Tribunal correctly found that Mr KC did not hold, or have pending before the Department or the Tribunal, an application for a subclass 457 visa. The Minister argued that the relevant criterion was whether, standing in his shoes, the Tribunal was satisfied of the matters prescribed in reg 2.72(5). He contended that, at the time of the nomination decision, it was reasonably open to the Tribunal to arrive at its state of lack of satisfaction that Mr KC did not, and could not, hold a subclass 457 visa.

38    The Minister submitted that Mr KC could not now meet the requirement in cl 457.223(4)(a) because he is not, and cannot in the future be, the subject of an approved or pending nomination as a result of the refusal of the College’s nomination application. He asserted that the transitional savings would not be rendered nugatory because of what cl 6704(6) or the explanatory statement for the amending Regulations stated in respect of item 79 of the amended Regulations (which repealed the old, and substituted a new, reg 2.72), namely, that:

… The regulation [new r 2.72] sets out the criteria which apply to a nomination of an occupation, made from 18 March 2018, in relation to the holder of a Subclass 457 or Subclass 482 visa, or an applicant or proposed applicant for a Subclass 482 visa. The reference to Subclass 457 is included because, although that visa has been repealed, holders of Subclass 457 visas will require a new nomination if they change employer. In order to obtain a new nomination for a Subclass 457 holder, a nomination must be applied for and approved under the new criteria. The old criteria continue to apply to nominations made prior to 18 March 2018.

(original emphasis)

39    The Minister argued that the College’s relevant approval as a standard business sponsor had expired on 21 December 2021 and its new approval in the Department’s letter dated 12 October 2021 applied only to subclass 482 and 494 visas. He contended that, accordingly, the College cannot now sponsor Mr KC for a subclass 457 visa.

Consideration

40    The Minister accepted, correctly, that the nomination decision may be liable to be set aside if the visa decision were vitiated by jurisdictional error. As Collier J explained in Mora v Minister for Immigration and Border Protection [2018] FCA 1819 at [54]–[57], with whose analysis in Song [2019] FCA 970 at [34], in obiter dicta, Perram J appeared to agree, a visa decision and a nomination decision are inextricably linked ([2018] FCA 1819 at [56]). That is because although each decision involves the decision-maker determining whether the relevant applicant has satisfied particular criteria prescribed for the grant of that person’s application for either a visa or approval of a nomination, the Regulations also prescribe that there exist at least the other pending or successfully decided application. That is, one of those applications cannot succeed without the other, since each involves the same holder or applicant for a subclass 457 visa and the same applicant to sponsor that person for that visa.

41    Here, when making the visa decision, the Tribunal was aware that the College had employed Mr KC in April 2016, after he had left the employ of No 1 Pest Control, and that the College was still then seeking to be his sponsor for the visa by lodging its application for review of the delegate’s decision to refuse its nomination application in respect of him.

42    Importantly, the Tribunal made the nomination decision because it found that, first, Mr KC did not hold (which was correct) and, secondly, was unable to be granted, a visa to work in the College’s nominated occupation (which could only be correct if his pending application for constitutional writ relief in the Federal Circuit Court and any appeal failed). Moreover, the nomination decision proceeded on the incorrect basis that the Tribunal had stated in [4], namely that, when the College lodged its application for review on 14 June 2017, there was no related review application by Mr KC. In fact, as the Tribunal recorded in [16] of the visa decision, that member knew that the College had sought review in the Tribunal of the decision not to grant it approval for its nomination, but, at [18] of the visa decision, had decided not to wait for the result of that other review.

43    This factual matrix gives rise to the following considerations. First, the Tribunal’s decision not to await the consideration of the College’s application for review would have the practical effect of precluding the College’s application (which identified Mr KC as the person to whom reg 2.72(5) applied) from any real chance of success, unless in the meantime, he sought and obtained constitutional writ relief. Secondly, the Tribunal member dealing with the College’s application for review proceeded on the basis that Mr KC had not sought a review of the delegate’s decision in the Tribunal or relief from the Federal Circuit Court and so could not be granted the visa for which the College, as sponsor, sought to nominate him. Thirdly, Mr Bimoli effectively gave up pursuing the College’s application for review after the misstep in his non-appearance on 3 September 2018 and no doubt in light of the clear message in the Tribunal’s letter of 16 April 2019, that, because Mr KC “does not hold, and is unable to be granted” the visa to work in the nominated occupation, there was no point in pursuing the College’s application.

The error issue

44    In [18] of the visa decision, the Tribunal gave an explanation for its decision that the trial judge correctly characterised as a conclusion that “enough is enough”. However, I am of opinion that his Honour erred in finding that the Tribunal’s reasons for so concluding were not affected by jurisdictional error. The only reason that the Tribunal gave for the visa decision was that the College’s application for review in the Tribunal of its nomination would delay the conduct of the review of the refusal to grant the visas to the appellants. The Tribunal previously had adjourned to allow the Department, by a delegate, to decide on the College’s application. The Tribunal knew that this had occurred in circumstances where Mr KC had ceased employment in April 2016 with No 1 Pest Control and still was working for his new prospective approved sponsor, the College. The Tribunal did not suggest or find that the College’s nomination of Mr KC was other than bona fide and capable of being granted.

45    The Tribunal had a duty in the review to act, pursuant to s 353(b) of the Act, according to substantial justice and the merits of the case. It was at least very likely that the outcomes of both its decision on the visa application and the College’s application for review were inextricably linked and that the member constituting the Tribunal on the appellants’ application for review or another member would have to decide the College’s application. If Mr KC’s visa were refused and that decision remained in force, then it was likely, on the material before it, that the College’s nomination of him was foredoomed to fail, but that, in any event, the Tribunal subsequently would have had to deal with the College’s application. In the latter situation, if the Tribunal had to decide the College’s application on review, its decision would necessarily be foreclosed, and accordingly, the refusal of the appellants’ visas would be the antithesis of the Tribunal’s invocation at [18] of “the efficient manner in which the Tribunal is required to conduct the review”.

46    On its findings, efficiency was the motivating factor in the Tribunal’s visa decision. However, that aim would be achieved in recognising, not ignoring or negating, the link between the two applications and either dealing with them together or as close as possible to one another. Rather, the Tribunal adopted a course that was calculated to cause both reviews to result in it affirming the delegates’ decisions because of the pellucid link between the two applications and reviews and the predictable consequence of breaking that link by its refusal to await the outcome of the College’s application for review.

47    In Li 249 CLR at 367 [76], Hayne, Kiefel and Bell JJ observed that “[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”. Their Honours dealt with a substantively similar situation to that of the appellants here, where the Tribunal had refused to adjourn a review to allow the applicant to take a second skills assessment on the basis that she had had enough opportunities to present her case and it was not prepared to delay the matter any further (249 CLR at 367–368 [79]–[80]). As Hayne, Kiefel and Bell JJ said (249 CLR at 368–369 [80]–[83], [85]):

80    … It may be accepted that the Tribunal is to act with some efficiency, as is stated in s 353(1) of the Migration Act, but such a consideration would again have to be weighed against the countervailing consideration of the purpose of s 360 and Div 5.

81    The Minister appears to translate the Tribunal’s reference to Ms Li having had sufficient opportunity as “enough is enough” and submits that if the Tribunal could not so determine, it would be required to hear, in effect, a series of applications which could be unending. This submission should be understood in the context that the criteria for the visa in question may be fulfilled at any time up to the point of decision.

82    It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. Of course it may decide, in an appropriate case, that “enough is enough”, but it is not apparent how that conclusion was reached in the present case, having regard to the facts and to the statutory purpose to which the discretion to adjourn is directed.

83    The purpose of s 360(1) has already been referred to. It is to provide an applicant for review the opportunity to present evidence and arguments “relating to the issues arising in relation to the decision under review”. The question which remained in issue when the Tribunal made its decision was the satisfaction of a visa criterion by a complying skills assessment. Although the Tribunal could not be expected to assume that the second skills assessment, when reviewed, would favour Ms Li, it did not suggest that there was no prospect of the second skills assessment being obtained, or that the outcome could not be known, in the near future. In these circumstances it is not apparent why the Tribunal decided, abruptly, to conclude the review.

…

85    The Tribunal’s error might be identified as giving too much weight to the fact that Ms Li had had some opportunity to present evidence and argument and insufficient weight to her need to present further evidence. It would not appear that the Tribunal had regard to the purposes for which the statutory discretion in s 363(1)(b) is provided in arriving at its decision. It is not possible to say which of these errors was made, but the result itself bespeaks error. In the circumstances of this case, it could not have been decided that the review should be brought to an end if all relevant and no irrelevant considerations were taken into account and regard was had to the scope and purpose of the statute. Because error must be inferred, it follows that the Tribunal did not discharge its function (of deciding whether to adjourn the review) according to law (Klein v Domus Pty Ltd (1963) 109 CLR 467 at 473). The Tribunal did not conduct the review in the manner required by the Migration Act and consequently acted beyond its jurisdiction.

(emphasis added)

48    I am of opinion that the facts here in relation to the visa decision are indistinguishable from the unreasonableness evident in the Tribunal’s decision that the High Court found in Li 249 CLR 332. While the Tribunal could not be expected to assume that the College’s application to it for review would be successful, it did not suggest that that application could not succeed, was not bona fide, or could or would not be decided in the near future. It had recognised the link between the College’s nomination application and the appellants’ application for review by awaiting the delegate’s decision on the College’s application. Thus, it is not apparent how the purpose of s 360(1) of the Act would be served by the Tribunal refusing the appellants’ application for review when the College’s application to it was pending. It would use its resources in an inefficient way if, as was plain, the Tribunal had refused already to decide to grant a visa to Mr KC, so that the College’s nomination for sponsorship would also have to fail if the visa decision was not set aside on judicial review: Li 249 CLR at 369 [85].

49    The only reason that the Tribunal gave for its nomination decision was that Mr KC did not have, could no longer apply and was not applying for, a subclass 457 visa. Thus, the failure of the Tribunal to adjourn the appellants’ application for review of the visa decision to allow the review of the College’s application was material because of the pellucid link between the two reviews. It follows that, as in Li 249 CLR 332, the Tribunal did not discharge its function of deciding whether to adjourn its review according to law and thus acted beyond its jurisdiction.

50    Accordingly, the visa decision, being affected by a material jurisdictional error, is no decision at all: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 506 [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.

The futility issue

51    The Legislation Act 2003 (Cth) provides in s 13(1)(a), relevantly, that the Acts Interpretation Act 1901 (Cth) applies to any legislative instrument, such as regulations, as if each provision of the instrument were a provision of an Act. The Acts Interpretation Act provides in s 7(2)(c) that unless the contrary intention appears (s 2(2)), the repeal of an Act does not affect any right or privilege acquired under the repealed or amended Act. Here, the intention of cll 6702(2) and 6704(6) and (7) in Sch 13 of the Regulations, consistently with s 7(2)(c), was to preserve the accrued rights of both an applicant for a visa and for a nomination respectively that existed when the amending Regulations took effect, so that such an application could continue and be completed as if the repeal of Pt 457 of the Regulations had not occurred: cf De L v Director-General, New South Wales Department of Community Services (1996) 187 CLR 640 at 653 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.

52    I reject the Minister’s argument that it would be futile to make orders to set the visa decision aside and remit it to the Tribunal. Because of the nature of the link between the visa and nomination decisions, once one failed, like a house of cards collapsing, so must the other also fail. That follows from the interdependence of their reasoning processes, namely, that, in the visa decision, there was no approved nomination so that the visa could not be granted and, because, later it had to refuse to grant the nomination application as a result of Mr KC not having a subclass 457 visa (stemming from the visa decision and the Tribunal’s finding that, by then, he could not be granted the visa due to its failure to take into consideration, or ignorance of, his application for judicial review).

53    The Minister’s resort to invoking reg 2.72(5) as to the need for his satisfaction that the visa applicant will work in the nominated occupation goes nowhere. The Tribunal made no operative finding in the visa decision other than that, for the purposes of cl 457.223(4)(a), there was no extant approval of a nomination under s 140GB. Thus, if the nomination decision were set aside and the College wished to pursue a review of the delegate’s decision, it is still possible for the nomination to be approved under s 7(2)(c) of the Acts Interpretation Act and cll 6702(2)(c), 6704(6) and (7): De L 187 CLR at 653.

54    Once the visa decision is set aside and remitted, so long as the College still wishes to sponsor Mr KC, the College would have a strong case to put to the Federal Circuit and Family Court of Australia (Division 2) that it would be necessary in the interests of the administration of justice for it to be granted an extension of time to seek review of the nomination decision under s 477(2) of the Act. If that extension were granted and the application for constitutional writ relief succeeded, the two Tribunal reviews could then be decided together or in tandem, as they ought to have been years ago.

Conclusion

55    For these reasons, the appeal must be allowed with costs, the order dismissing the application below should be set aside, the visa decision should be quashed and the matter remitted to the Tribunal to be determined according to law. It will be necessary to hear the parties as to the issue of costs before the trial judge. I will allow the parties to confer and bring in draft orders to give effect to these reasons. If they cannot agree, they should make written submissions limited to one page within seven days.

Associate:

Dated:    13 January 2023