Federal Court of Australia

Lam v Minister for Immigration and Multicultural Affairs [2025] FCA 506

ORDERS

THE COURT ORDERS THAT:

1.    The appeal in SAD 177 of 2022 is dismissed.

2.    The appeal in SAD 178 of 2022 is dismissed.

3.    The appellants do pay the first respondent’s costs, fixed in the amount of FIVE THOUSAND DOLLARS ($5,000).

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

REASONS FOR JUDGMENT

O’SULLIVAN J:

Introduction

1    These reasons concern two related matters: SAD 177 of 2022 and SAD 178 of 2022. The first appellant in SAD 178 of 2022 is Mr Dat Tai Lam and the second appellant is the first appellant’s partner, Ly Phung Moc. In action no. SAD 177 of 2022, Henry Lam is named as the appellant. He is the infant son of the first and second appellants and in these reasons is referred to as the third appellant. In these reasons, a reference to the appellant, is a reference to the first appellant in SAD 178 of 2022, who was the representative appellant in both actions.

2    The appellant is a citizen of Vietnam. On 24 January 2019, the appellant applied for a Training (Subclass 407) visa, however the appellant was not identified in any nominated program of occupational training by any sponsor and a request made of the appellant to provide further information was not responded to.

3    On 17 April 2019, in the absence of being named in any program of occupational training, a delegate of the Minister refused the appellant’s application for a visa (Decision). The notification letter enclosing the decision, incorrectly informed the second appellant that she had no rights of merits review in relation to the decision.

4    On 26 April 2019, the appellant applied to the Administrative Appeals Tribunal for review.

5    The Tribunal invited the appellant to provide submissions in relation to the validity of his visa application in circumstances where:

(a)    There was no identification of an approved nomination that had not ceased;

(b)    There was no pending application for review before the Tribunal of a decision not to approve a sponsor under s 140E of the Migration Act 1958 (Cth); or

(c)    There was no valid and pending application for a review of a decision not to approve the nomination under s 140GB of the Act.

6    The appellant responded to that invitation, in which the appellant contended that he had been the victim of “third-party fraud” and that the Tribunal should find that the delegate’s decision invalid “either due to third party fraud [or] any other grounds of invalidity”.

7    On 21 October 2019, the Tribunal held that it had no jurisdiction in respect of the appellant’s application for review (Tribunal Decision). It also held that the error in the initial notice to the second appellant informing her of the decision in relation to rights of review was immaterial.

8    In reaching its determination that it had no jurisdiction, the Tribunal was satisfied that the appellant was not a person who had an approved and valid nomination from a sponsor which had not ceased, nor was it satisfied there was a valid or pending application before the Tribunal for a review of a decision not to approve the sponsor under s 140E of the Act. Further, there was no pending review of a decision not to approve the nomination under s 140GB of the Act. As such, pursuant to s 338(2)(d) of the Act, the decision was not reviewable before the Tribunal.

9    Having determined that the delegate’s decision was not reviewable in respect of the appellant, the Tribunal determined that it was futile to make any determination relating to the second appellant who was a member of the same family unit.

10    On 21 October 2019, the Tribunal also gave a separate decision dealing with the third appellant. The Tribunal found that given it did not have jurisdiction to determine the matter in respect of the appellant, the same must follow for third appellant in circumstances where his application attached as a secondary applicant to the appellant’s visa application.

11    On 20 December 2019, the appellant applied for judicial review of the Tribunal’s Decision before the Federal Circuit and Family Court of Australia (Division 2), and on 17 April 2020 the appellant also sought a review of the decision in relation to the third appellant.

12    On 1 November 2022, the primary judge dismissed both applications for judicial review on the basis that the Tribunal was correct to find that the requirements in s 338 of the Act had not been met, such that it did not have jurisdiction.

13    The appellant now appeals from the decision of the primary judge by notice of appeal filed 22 November 2022, relying on lengthy grounds of appeal that appear to assert a denial of procedural fairness and general failure to consider all relevant circumstances.

Primary judge’s reasons

14    Before the FCFCoA, the appellant advanced four grounds of review that asserted both that the Tribunal erred in finding that it had no jurisdiction, and that the decision was affected by third-party fraud.

15    Before the primary judge, the appellant submitted that the Tribunal’s jurisdiction arose under s 25 of the Administrative Appeals Tribunal Act 1975 (Cth). However, the primary judge found that s 25 merely indicates that other Acts (such as the Migration Act) confer jurisdiction. The source of jurisdiction was s 338 of the Act, not s 25 of the AAT Act.

16    The appellant relied on s 347 of the Act, relating to Part 5 reviewable decisions. The primary judge observed that s 347 presupposes that a “Part 5 reviewable decision” exists and that the lack of an approved nomination meant no Part 5 reviewable decision could be made.

17    Further, despite the appellant alleging that his migration agent committed fraud by creating a fake email address and misleading the Department of Home Affairs, the primary judge found that such claims were unsupported by sufficient evidence before the Tribunal.

18    Although given an opportunity to provide further evidence prior to the matter coming before the primary judge, the appellant failed to do so within the time ordered, or at all.

19    The primary judge observed that even if fraud had been proven, the absence of the essential requisite (an approved nomination) remained an insurmountable barrier to relief.

20    The primary judge determined that given the appellant lacked a valid, approved nomination at the time of the decision, the Tribunal was correct to conclude it had no jurisdiction.

21    The primary judge concluded that both applications, that is: the application by the first and second appellants and the application of the third appellant, must be dismissed.

The appeal

22    On 22 November 2022, the appellant filed a notice of appeal which again relied on lengthy grounds that appear to assert a denial of procedural fairness and general failure to consider relevant circumstances.

23    The appellant was self-represented with the aid of an interpreter. At the hearing, the appellant handed up an affidavit which read more as written submissions. I received the affidavit on the appeal.

24    The appellant also referred to email correspondence in relation to a sponsor. However, upon examination, the correspondence in question did not advance the appellant’s case as it was not linked to his visa application.

25    The appellant appears to challenge other aspects of the Tribunal’s decision, which were not raised before the primary judge. Those matters were directed to the Tribunal allegedly failing to provide the appellant with procedural fairness.

26    In response, the Minister submitted that procedures in Part 5, Division 5 of the Act do not apply if the Tribunal did not have jurisdiction.

27    The Minister submitted that in any event the Tribunal afforded the appellants procedural fairness when inviting the appellants to comment of the validity of their applications for review. I accept the Minister’s submissions.

28    The Minister submitted further that even in the event that the primary judge’s reason were affected by error, the Court should refuse relief on the basis that no useful result could result from a remittal. That is because cl 407.214 required that the appellant be the subject of an approved nomination in relation to a program of occupational training, and there was none.

29    I accept that submission.

30    The primary judge was correct in concluding that the Tribunal’s Decision that it lacked jurisdiction, given the pre-requisite for jurisdiction pursuant to s 338 had not been met, was correct.

Conclusion

31    It is for these reasons that the appeal in both actions must be dismissed.

32    There is no reason why that appellants should not pay the first respondent’s costs which are fixed in the amount of $5,000.

Associate:

Dated:    16 May 2025