Li v Minister for Immigration and Citizenship [2025] FCA 1689

1. Mr Yonghui Li is a citizen of the People's Republic of China. On 11 January 2021, Mr Li applied under the Migration Act 1958 (Cth) (the Act) for what is known as an employer nomination (permanent) visa. One of the criteria in respect of which the Minister or a delegate must be satisfied in relation to such a visa application is that specified in cl 186.213(1) of sch 2 to the Migration Regulations 1994 (Cth) (Regulations).
2. On 16 July 2021, a delegate of the Minister refused to grant Mr Li that visa on the basis that the delegate was not satisfied that the requirements of that particular condition were met. More particularly, the delegate found that that condition was not met because public interest criterion (PIC) 4020 was applicable. In effect, that was because the delegate concluded that Mr Li had furnished false and misleading information in a material particular with respect to the grant of a visa. That was found by the delegate to be with respect to a work reference in support of his work experience as furnished in support of the visa application.
3. Mr Li sought the review of that decision by the then Administrative Appeals Tribunal (Tribunal). After a hearing in which Mr Li had the benefit of legal representation and in which he gave evidence, the Tribunal decided on 16 November 2023, for reasons given that day, to affirm the decision of the delegate not to grant the visa for which Mr Li had applied.
4. Mr Li then sought the judicial review of that decision by the Federal Circuit and Family Court of Australia Division 2 (Circuit Court). On 9 May 2025, the Circuit Court dismissed Mr Li's judicial review application; see _Yonghui Li v Minister for Immigration, Citizenship and Multicultural Affair_s [2025] FedCFamC2G 665.
5. Mr Li has appealed to this court against the order of dismissal.
6. As is appropriate, the Tribunal has filed a submitting appearance and took no active part on the hearing of the appeal. The Minister was the only active party respondent. Mr Li appeared on his own behalf, as he had before the Circuit Court. The hearing of the appeal was conducted with the benefit of an interpreter, given that English is not Mr Li's first language.
7. There are two grounds of appeal. Those grounds are as follows:
   1. The Federal Circuit and Family Court of Australia erred by failing to consider whether the Administrative Appeals Tribunal (AAT) committed a jurisdictional error by misapprehending or failing to consider key evidence - including a skills assessment dated 7 October 2016 - which, together with other evidence, supported the appellant's claim that he had worked as a skilled meatworker before coming to Australia. This evidence, if properly considered, showed that the appellant did not provide false or misleading information, and the Department's application of PIC 4020 was incorrect.
   2. The Federal Circuit and Family Court also erred by failing to recognise that the AAT had breached section 359A of the Migration Act 1958 by failing to comply with its statutory obligation under that provision. The Court incorrectly treated the breach as immaterial, despite it being clear, serious, and having a significant impact on the conduct of the case.

1. Ground 1 alleges an error on the part of the Circuit Court in failing to consider whether the Tribunal had committed a jurisdictional error by misapprehending or failing to consider key evidence. The particular evidence identified is a skills assessment dated 7 October 2016. In conjunction with other evidence, this was said to lead to a conclusion that the Tribunal's review of the delegate's decision had miscarried, because of a fundamental misunderstanding of the case made before the Tribunal for the applicant, Mr Li.
2. It is true that the learned primary judge did not address this alleged jurisdictional error. But as his Honour's reasons reveal, he did so for a very particular reason. That reason, so his Honour held, flowed from an inevitable consequence of an absence of any ministerial approval at the time of the Tribunal's decision of an employer nomination in respect of Mr Li's visa application. Within cl 186.242 of sch 2 to the Regulations, it is provided:

Clause 186.242

(1) The position to which the application relates is the position:

(a) nominated in an application for approval that:

(i) identifies the applicant in relation to the position; and

(ii) is made in relation to a visa in a Labour Agreement stream; and

(b) identified in the application for the grant of the visa.

...

(3) The Minister has approved the nomination.

(4) The nomination has not subsequently been withdrawn.

1. There was no evidence before the Tribunal of any ministerial approval of the nomination by an employer of Mr Li in conjunction with his visa application. From this, it followed, in the view of the learned primary judge, that the inevitable consequence was that the Tribunal could never have been satisfied, as s 65 of the Act required, for there to be an obligation to grant the visa. That being so, even if the Tribunal had otherwise committed an error as alleged or at all, the error concerned could not be jurisdictional, because the visa application was inevitably doomed to fail. In those circumstances, the learned primary judge considered it unnecessary to address the alleged jurisdictional error.
2. The Tribunal's reasons disclose, at [18], an awareness on the part of the Tribunal that Mr Li had been nominated by his employer, Teys Biloela, as a meat worker on a cl 186 visa application. The Tribunal was not aware - and this is common ground - that by a letter dated 17 August 2021, Teys Biloela's migration agent had advised the Minister's department that they had received instructions from the company to seek to withdraw the nomination in respect of Mr Li. On 20 October 2021, the Minister's department responded to Teys Biloela and confirmed that it had accepted the withdrawal of the company's nomination application in respect of Mr Li's visa application. Also stated in that letter was the following quote:

It is not possible to reconsider an application after it has been withdrawn. If at any time in the future you wish to apply for another application, a new application must be lodged.

1. On 4 November 2021, a lawyer acting on behalf of Teys Biloela advised the Minister's department that the request for withdrawal of the nomination approval application in respect of Mr Li was an administrative error and that:

The applicant, ie, Teys Biloela, wishes to continue the subclass 186 nomination application.

1. The ramifications of this changed position on the part of Teys Biloela in relation to its application for approval of its nomination of Mr Li in relation to his visa application were not addressed by the Tribunal. One reason for that was that the Tribunal appears not to have been told about the sequel. But in any event, nothing could change the position, which was, as at the time of the Tribunal's decision, there had been no approval in respect of the nomination by Teys Biloela of the visa application Mr Li had made.
2. In his approach to the meaning and effect of clause 186, the primary judge applied, by analogy, observations made concerning a materially indistinguishable visa criterion in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105; (2017) 253 FCR 267 (Singh). In Singh, at [89], Mortimer J, as her Honour then was, with whom Jagot and Bromberg JJ agreed, observed of what truly is an analogue of cl 186, that:

It does not contemplate that an employer can file repeated nomination applications in relation to the same visa application and the same visa applicant.

An examination of the nature and range of matters set out in regulation 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a "once off" process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).

1. Given the materially indistinguishable language of clause 186, I consider that those observations concerning the meaning and effect of the analogue, being observations made by a Full Court, are binding upon me.
2. Even so, I am by no means persuaded that, prior to an approval decision by a Minister or a delegate, an employer such as Teys Biloela is unable to correct an erroneous withdrawal. Clause 186.242(4) makes reference to:

The nomination has not subsequently been withdrawn.

1. However, as a matter of language, "subsequently" refers to a time after any ministerial approval, under clause 186.242(3), has occurred. Teys Biloela was not seeking to make a fresh nomination, only to correct, prior to any ministerial approval decision, an erroneous withdrawal. It would be an odd thing, indeed, in public administration if such errors were not accepted readily as being able to be corrected. It would lead to a truly Kafkaesque state of Australian public administration, were it to be otherwise. Ordinary care and common sense in public administration ought to admit of an honest mistake being cured in the absence of some impermissible statutory provision to the contrary.
2. All that said, nothing can alter the position which obtained as at the time of the Tribunal's decision, namely, an absence of ministerial approval.
3. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321, the High Court gave guidance as to what constituted a threshold of materiality of error for the purposes of a conclusion that the error concerned was jurisdictional. In effect, that guidance was that the question was whether there was a possibility which was realistic, not fanciful or improbable, that the decision that was, in fact, made could have been different if the error had not occurred. The High Court made plain that it was not necessary to show that the decision would have been different.
4. The Tribunal's decision was to affirm the delegate's decision not to grant Mr Li the visa for which he had applied. Having regard to the absence of ministerial approval, the inevitable consequence, flowing from the statutory obligation in s 65 of the Act engaged when a visa criterion cannot be the subject of satisfaction, was that the visa application had to be refused. Standing, as it did, in the Minister's delegate's place, the inevitable consequence of an absence of ministerial approval of Teys Biloela's nomination application was that the delegate's decision would have to have been affirmed by the Tribunal.
5. Notwithstanding that he was represented, this absence of ministerial approval seems to have escaped attention before the Tribunal. Although there is no formal onus of proof in a review hearing of this kind by the Tribunal, it is nonetheless in the interests of a person such as Mr Li, seeking a favourable outcome, to ensure that there is material before the Tribunal, which admits of satisfaction in respect of all applicable visa criteria.
6. In this case, and as the Tribunal's reasons reveal, it appears that attention to each of the criteria was obscured by a very significant conflict indeed as to whether or not the Tribunal should be satisfied that the public interest criterion was applicable or whether, in any event, compliance with that should be waived.
7. There is, therefore, no merit in ground 1. I respectfully agree with the conclusion reached by the learned primary judge.

1. Ground 2 was put in a very particular way before the Circuit Court. As pleaded in the amended application for review, the ground was as follows:
   1. On 8 April 2025, the applicant filed an Amended Application for Review, the Grounds of which were as follows:
      1. The Tribunal have directly breached s.359A of the Migration Act 1958 (Cth), failing to comply with their obligations under this section.

Particulars:

a) The ART never invited me to comment on or respond to the concerns regarding my nomination, as required under s.359A.

b) The First Respondent sought to dismiss my case based on issues related to the nomination, despite being fully aware that they had not fulfilled their legal obligations under s.359A.

c) The ART bears responsibility for properly addressing the nomination issue. Had it complied with its legal duty under s.359A, this issue might never have arisen, and the subsequent hearing may not have been necessary at all.

1. The Tribunal's reasons reveal that the Tribunal adopted the procedure for which the then s 359AA of the Act provided. That procedure, as s 359A(3) provides, is an alternative to the procedure for which s 359A provides.
2. In effect, s 359A obliges the Tribunal to give advance notice in writing to an applicant of certain information which the Tribunal considers would be the reason, or part of the reason for affirming the decision that is under review, and to invite the applicant to respond. Also, in effect, s 359AA of the Act provides an alternative procedure by which certain information, and a related invitation to respond, may be given orally to an applicant by the Tribunal at a hearing. It is that procedure which, on the face of the Tribunal's reasons, the Tribunal followed in relation to very particular concerns arising in respect of information provided, or said to have been provided in support of the visa application by a Mr Ye of a specified previous employer in China of the applicant, Mr Li.
3. The Tribunal's reasons disclose that Mr Li's then representative engaged very closely indeed with the subject of whether or not the Tribunal should be satisfied in respect of the past employment of Mr Li by this employer, his related experience and skill as a meat worker, and what to make of answers given upon telephonic inquiry of a Mr Ye by a member of Australia's diplomatic staff in China. In the course of addressing at considerable length and in considerable detail that subject, the Tribunal expressly referred, in two places in the Tribunal's reasons, to the skills assessment identified in Mr Li's grounds of appeal. Under the heading Materials Submitted Following the Hearing, at [38], in listing material additionally submitted, the Tribunal referred to:

...skills assessment Teys Australia for the applicant as having Certificate III Meat Processing (Boning Room).

1. Also under that heading, at [41], the Tribunal stated:
   1. Teys are well respected in Queensland and a major contributor to the cattle industry and it's future particularly in Central Queensland. The Tribunal acknowledges the points made by Teys and the struggle they have to recruit skilled meat workers and recognises that Mr Li is now a skilled meatworker as evidenced by the skills assessment submitted by Teys. However, the question for the Tribunal regarding Teys evidence is whether the end justifies the means. It is not surprising that after working and being trained by Teys, the applicant is a skilled meatworker now, the question is whether the applicant was a skilled meatworker with two years' experience at the time of application such that his evidence was not misleading or false. Weight is given to Teys submission, but it does not go to the central question of whether misleading or false evidence was provided by the applicant. Rather

1. Insofar as ground 1 might be thought to allege a failure to give any or any adequate weight to material supporting Mr Li's visa application going to his work history and skills, ground 1 impermissibly solicits merits review. And in any event, it is clear to the point of demonstration from the Tribunal's reasons that this subject was, as I have said, addressed in very considerable detail, including with reference to the skills assessment concerned.
2. With respect to ground 2, the short point is that s 359A was inapplicable because the Tribunal adopted the permissible alternative pathway of resort to the giving orally of information and a related invitation, as permitted by s 359AA of the Act at the time.
3. It is not difficult to see how Mr Li might feel genuinely a sense of grievance with the fate of his visa application. There is reference in the Tribunal's reasons to other visa applications which at least at a general level were similar to his and had a different fate. Further, it is obvious that his visa application was the subject of a subsequent administrative error with respect to the related nomination application by Teys Biloela.
4. Even if one were to put aside the inevitable effect of an absence of ministerial approval of the nomination application by Teys Biloela, the position which remains is that after a hearing on the merits by a Tribunal independent of the Minister and upon consideration of very detailed and focused submissions on behalf of Mr Li by his then legal representative, the Tribunal was just not satisfied concerning the authenticity of the supporting material concerning Mr Li's qualifications and experience.
5. That aside and notwithstanding what looks to me to have been a very sympathetic supporting submission made by Teys Biloela, the Tribunal decided not to exercise a waiver power.
6. It is a necessary discipline in relation to this type of case for the judicial branch of government, where no jurisdictional error is shown by an applicant or error in relation to a conclusion on that subject by an appellant, to defer to those under our migration law who are charged with making merits-based decisions and evaluations. For these reasons, I am not satisfied that error has been shown in the order of dismissal made by the Circuit Court. The appeal must, therefore, be dismissed.
7. In respect of costs, and upon my indication that the appeal would be dismissed, the Minister made application for an order for costs. Mr Li, in response, pointed to his having exercised particular rights of challenge. I am well satisfied that Mr Li's initial judicial review application and, for that matter, his appeal, were neither frivolous nor vexatious. That is so notwithstanding the outcome. The invoking of both original and appellate jurisdiction was Mr Li's right.
8. The touchstone in respect of whether to order costs is not whether the appeal was frivolous or vexatious. Rather, although, the discretion is, ultimately, open-ended, the usual way in which that discretion is exercised is that costs follow the event. Here, the event is one of dismissal. Accordingly, there is no reason why the Minister's cost application should not be granted.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.